[EXECUTION COPY]
U.S. $95,475,000
CREDIT AGREEMENT,
dated as of September 30, 1997,
among
XXXXX XXXXX,
as the Borrower,
XXXXX XXXXX HOLDING CORP.,
DABOCO INC.
AND
XXXXX XXXXX INC.,
as the Parent Guarantors,
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders,
DLJ CAPITAL FUNDING, INC.,
as the Syndication Agent for the Lenders,
FLEET NATIONAL BANK,
as the Administrative Agent for the Lenders,
and
CREDIT LYONNAIS NEW YORK BRANCH,
as the Documentation Agent for the Lenders.
ARRANGED BY:
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION
TABLE OF CONTENTS
Section Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms....................................................2
1.2. Use of Defined Terms............................................30
1.3. Cross-References................................................30
1.4. Accounting and Financial Determinations.........................30
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES,
NOTES AND LETTERS OF CREDIT
2.1. Commitments.....................................................31
2.1.1. Term Loan Commitments...........................................31
2.1.2. Revolving Loan Commitment and Swing Line Loan Commitment........31
2.1.3. Letter of Credit Commitment.....................................32
2.1.4. Lenders Not Permitted or Required to Make the Loans.............32
2.1.5. Issuer Not Permitted or Required to Issue Letters of Credit.....32
2.2. Reduction of the Commitment Amounts.............................32
2.2.1. Optional........................................................32
2.2.2. Mandatory.......................................................33
2.3. Borrowing Procedures and Funding Maintenance....................33
2.3.1. Term Loans and Revolving Loans..................................33
2.3.2. Swing Line Loans................................................34
2.4. Continuation and Conversion Elections...........................35
2.5. Funding.........................................................36
2.6. Issuance Procedures.............................................36
2.6.1. Other Lenders' Participation....................................37
2.6.2. Disbursements; Conversion to Revolving Loans....................37
2.6.3. Reimbursement...................................................38
2.6.4. Deemed Disbursements............................................38
2.6.5. Nature of Reimbursement Obligations.............................39
2.6.6. Indemnity.......................................................39
2.6.7. Borrower's Guaranty of Reimbursement Obligations under Letters
of Credit Issued for the Account of its Subsidiaries..........39
2.7. Register; Notes.................................................43
Section Page
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ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments; Application.........................44
3.1.1. Repayments and Prepayments......................................44
3.1.2. Application.....................................................48
3.2. Interest Provisions.............................................49
3.2.1. Rates...........................................................49
3.2.2. Post-Maturity Rates.............................................49
3.2.3. Payment Dates...................................................49
3.3. Fees ...........................................................50
3.3.1. Commitment Fee..................................................50
3.3.2. Syndication Agent's, Administrative Agent's and
Arranger's Fees...............................................50
3.3.3. Letter of Credit Fee............................................50
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful......................................51
4.2. Deposits Unavailable............................................51
4.3. Increased LIBO Rate Loan Costs, etc.............................51
4.4. Funding Losses..................................................52
4.5. Increased Capital Costs.........................................52
4.6. Taxes...........................................................52
4.7. Payments, Computations, etc.....................................54
4.8. Sharing of Payments.............................................54
4.9. Setoff..........................................................55
4.10. Replacement of Lenders..........................................55
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
5.1. Initial Credit Extension........................................56
5.1.1. Corporate and Partnership Documents, etc........................56
5.1.2. Consummation of Refinancing.....................................56
5.1.3. Closing Date Certificates.......................................56
5.1.4. Delivery of Notes...............................................57
5.1.5. Pledge Agreement................................................57
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Section Page
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5.1.6. Security Agreements.............................................57
5.1.7. Mortgage........................................................58
5.1.8. Financial Information, etc......................................58
5.1.9. Solvency, etc...................................................58
5.1.10. Change of Control Offerings.....................................59
5.1.11. Payment of Outstanding Indebtedness, etc........................59
5.1.12. Litigation......................................................59
5.1.13. Material Adverse Change.........................................59
5.1.14. Opinions of Counsel.............................................60
5.1.15. Insurance.......................................................60
5.1.16. Perfection Certificate..........................................60
5.1.17. Approvals.......................................................60
5.1.18. Closing Fees, Expenses, etc.....................................60
5.1.19. Satisfactory Legal Form.........................................60
5.2. All Credit Extensions...........................................60
5.2.1. Compliance with Warranties, No Default, etc.....................60
5.2.2. Credit Extension Request........................................61
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Organization, etc...............................................61
6.2. Due Authorization, Non-Contravention, etc.......................62
6.3. Government Approval, Regulation, etc............................62
6.4. Validity, etc...................................................62
6.5. Financial Information...........................................62
6.6. No Material Adverse Change......................................63
6.7. Litigation, Labor Controversies, etc............................63
6.8. Subsidiaries....................................................63
6.9. Ownership of Properties.........................................63
6.10. Taxes...........................................................63
6.11. Pension and Welfare Plans.......................................64
6.12. Environmental Warranties........................................64
6.13. Regulations G, U and X..........................................65
6.14. Accuracy of Information.........................................65
6.15. Solvency........................................................66
6.16. Pharmaceutical Laws.............................................66
6.17. Seniority of the Obligations and Permitted Indebtedness
under the Indentures..........................................67
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Section Page
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ARTICLE VII
COVENANTS
7.1. Affirmative Covenants...........................................67
7.1.1. Financial Information, Reports, Notices, etc....................67
7.1.2. Compliance with Laws, etc.......................................70
7.1.3. Maintenance of Properties.......................................70
7.1.4. Insurance.......................................................70
7.1.5. Books and Records...............................................71
7.1.6. Environmental Covenant..........................................71
7.1.7. Future Subsidiaries.............................................72
7.1.8. Future Leased Property and Future Acquisitions of Real
Property; Future Acquisition of Other Property................73
7.1.9. Use of Proceeds, etc............................................74
7.1.10. Hedging Obligations.............................................74
7.1.11. Maintenance of Corporate Separateness...........................74
7.1.12. Borrower Indebtedness...........................................74
7.2. Negative Covenants..............................................75
7.2.1. Business Activities.............................................75
7.2.2. Indebtedness....................................................75
7.2.3. Liens...........................................................77
7.2.4. Financial Covenants.............................................78
7.2.5. Investments.....................................................79
7.2.6. Restricted Payments, etc........................................81
7.2.7. Capital Expenditures, etc.......................................83
7.2.8. Consolidation, Merger, etc......................................83
7.2.9. Asset Dispositions, etc.........................................84
7.2.10. Modification of Certain Agreements..............................85
7.2.11. Transactions with Affiliates....................................85
7.2.12. Negative Pledges, Restrictive Agreements, etc...................85
7.2.13. Stock of Subsidiaries...........................................85
7.2.14. Sale and Leaseback..............................................86
ARTICLE VIII
EVENTS OF DEFAULT
8.1. Listing of Events of Default....................................86
8.1.1. Non-Payment of Obligations......................................86
8.1.2. Breach of Warranty..............................................86
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Section Page
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8.1.3. Non-Performance of Certain Covenants and Obligations............86
8.1.4. Non-Performance of Other Covenants and Obligations..............86
8.1.5. Default on Other Indebtedness...................................87
8.1.6. Judgments.......................................................87
8.1.7. Pension Plans...................................................87
8.1.8. Change in Control...............................................87
8.1.9. Bankruptcy, Insolvency, etc.....................................87
8.1.10. Impairment of Security, etc.....................................88
8.2. Action if Bankruptcy, etc.......................................88
8.3. Action if Other Event of Default................................88
ARTICLE IX
GUARANTY
9.1. Guaranty........................................................89
9.2. Acceleration of Parent Guaranty.................................89
9.3. Guaranty Absolute, etc..........................................89
9.4. Reinstatement, etc..............................................91
9.5. Waiver, etc.....................................................91
9.6. Postponement of Subrogation, etc................................91
9.7. Successors, Transferees and Assigns; Transfers of Notes, etc....92
ARTICLE X
THE AGENTS
10.1. Actions.........................................................92
10.2. Funding Reliance, etc...........................................93
10.3. Exculpation.....................................................93
10.4. Successor.......................................................93
10.5. Credit Extensions by each Agent.................................94
10.6. Credit Decisions................................................94
10.7. Copies, etc.....................................................94
10.8. The Swing Line Lender, the Issuer, the Documentation
Agent, the Syndication Agent and the Administrative Agent.....95
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1. Waivers, Amendments, etc........................................95
11.2. Notices.........................................................96
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Section Page
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11.3. Payment of Costs and Expenses...................................97
11.4. Indemnification.................................................97
11.5. Survival........................................................99
11.6. Severability....................................................99
11.7. Headings........................................................99
11.8. Execution in Counterparts, Effectiveness, etc...................99
11.9. Governing Law; Entire Agreement.................................99
11.10. Successors and Assigns..........................................99
11.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes...............................................99
11.11.1. Assignments....................................................100
11.11.2. Participations.................................................102
11.12. Other Transactions.............................................103
11.13. Independence of Covenants......................................103
11.14. Confidentiality................................................103
11.15. Forum Selection and Consent to Jurisdiction....................104
11.16. Waiver of Jury Trial...........................................105
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Percentages and Administrative Information
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Term Note
EXHIBIT A-3 - Form of Registered Note
EXHIBIT A-4 - Form of Swing Line Note
EXHIBIT B-1 - Form of Borrowing Request
EXHIBIT B-2 - Form of Issuance Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D-1 - Form of Holdings Closing Date Certificate
EXHIBIT D-2 - Form of Borrower Closing Date Certificate
EXHIBIT E - Form of Compliance Certificate
EXHIBIT F-1 - Form of Partnership Security Agreement
EXHIBIT F-2 - Form of Borrower Security Agreement
EXHIBIT F-3 - Form of Subsidiary Security Agreement
EXHIBIT G-1 - Form of Parent Pledge Agreement
EXHIBIT G-2 - Form of Borrower Pledge Agreement
EXHIBIT G-3 - Form of Subsidiary Pledge Agreement
EXHIBIT H - Form of Subsidiary Guaranty
EXHIBIT I - Form of Perfection Certificate
EXHIBIT J - Form of Lender Assignment Agreement
EXHIBIT K - Form of Opinion of New York Counsel to the Obligors
EXHIBIT L-1 - Form of Solvency Certificate of Holdings
EXHIBIT L-2 - Form of Solvency Certificate of the Borrower
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of September 30, 1997, is made among
XXXXX XXXXX, a New York general partnership (the "Borrower"), XXXXX XXXXX
HOLDING CORP., a Delaware corporation ("Holdings"), DABOCO INC., a New York
corporation ("Daboco"), XXXXX XXXXX INC., a Delaware corporation ("DRI" and,
together with Holdings and Daboco, collectively, the "Parent Guarantors"), the
various financial institutions as are or may become parties hereto
(collectively, the "Lenders"), DLJ CAPITAL FUNDING, INC. ("DLJ"), as
syndication agent (in such capacity, the "Syndication Agent") for the Lenders,
FLEET NATIONAL BANK ("Fleet"), as administrative agent (in such capacity, the
"Administrative Agent") for the Lenders and CREDIT LYONNAIS NEW YORK BRANCH
("Credit Lyonnais"), as the documentation agent (in such capacity, the
"Documentation Agent") for the Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower intends to refinance (the "Refinancing") its
existing senior credit facilities, evidenced by that certain Credit Agreement,
dated as of September 24, 1992 (as amended, supplemented, amended and restated
or otherwise modified prior to the Closing Date, the "Existing Credit
Agreement") among the Borrower, Daboco, DRI, the lenders party thereto, and the
Agent (as defined therein);
WHEREAS, approximately $91,000,000 will be required to consummate the
Refinancing, of which no more than $3,500,000 will be used to pay reasonable
fees and expenses associated with the Refinancing;
WHEREAS, in connection with the Refinancing and the ongoing working
capital and general corporate needs of the Borrower, the Borrower desires to
obtain the following financing facilities from the Lenders:
(a) a Term Loan Commitment pursuant to which Borrowings of
Term Loans will be made to the Borrower on the Closing Date in a
maximum, original principal amount of $65,475,000;
(b) a Revolving Loan Commitment (to include availability for
Revolving Loans, Swing Line Loans and Letters of Credit) pursuant to
which Borrowings of Revolving Loans, in a maximum aggregate
outstanding principal amount (together with the aggregate outstanding
amount of all Swing Line Loans and Letter of Credit Outstandings) not
to exceed $30,000,000 will be made to the Borrower from time to time
on and subsequent to the Closing Date but prior to the Revolving Loan
Commitment Termination Date;
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(c) a Letter of Credit Commitment pursuant to which the
Issuer will issue Letters of Credit for the account of the Borrower
from time to time on and subsequent to the Closing Date but prior to
the Revolving Loan Commitment Termination Date in a maximum aggregate
Stated Amount at any one time outstanding not to exceed $10,000,000
(provided, that the aggregate outstanding amount of all Revolving
Loans, Swing Line Loans and Letter of Credit Outstandings at any time
shall not exceed the then existing Revolving Loan Commitment Amount);
and
(d) a Swing Line Loan Commitment pursuant to which Borrowings
of Swing Line Loans in an aggregate outstanding principal amount not
to exceed $5,000,000 will be made to the Borrower on and from time to
time subsequent to the Closing Date but prior to the Revolving Loan
Commitment Termination Date (provided, that the aggregate outstanding
amount of all Swing Line Loans, Revolving Loans and Letter of Credit
Outstandings at any time shall not exceed the then existing Revolving
Loan Commitment Amount);
with the proceeds of the Credit Extensions to be used for the purposes set
forth in Section 7.1.9; and
WHEREAS, the Lenders and the Issuer are willing, on the terms and
subject to the conditions hereinafter set forth (including Article V), to
extend the Commitments and make the Loans described herein to the Borrower and
issue (or participate in) Letters of Credit for the account of the Borrower;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Administrative Agent" is defined in the preamble and includes each
other Person as shall have subsequently been appointed as the successor
Administrative Agent pursuant to Section 10.4.
"Administrative Agent's Fee Letter" means the confidential fee letter,
dated as of September 16, 1997, between the Borrower and the Administrative
Agent.
"Affected Lender" is defined in Section 4.10.
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"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power (a)
to vote 10% or more of the securities (on a fully diluted basis) having
ordinary voting power for the election of directors or managing general
partners, or (b) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Agent" means, as the context may require, the Administrative Agent
and/or the Syndication Agent.
"Agreement" means, on any date, this Credit Agreement as originally in
effect on the Closing Date and as thereafter from time to time amended,
supplemented, amended and restated, or otherwise modified and in effect on such
date.
"Alternate Base Rate" means, for any day and with respect to all Base
Rate Loans, the higher of: (a) 0.50% per annum above the Federal Funds Rate
most recently determined by the Administrative Agent; and (b) the rate of
interest in effect for such day as most recently publicly announced or
established by the Administrative Agent in Boston, Massachusetts, as its "prime
rate." (The "prime rate" is a rate set by the Administrative Agent based upon
various factors including the Administrative Agent's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above or below such announced
rate.) Any change in the reference rate established or announced by the
Administrative Agent shall take effect at the opening of business on the day of
such establishment or announcement.
"Applicable Commitment Fee" means, (a) for each day from the Closing
Date through (but excluding) the date upon which the Compliance Certificate for
the second full Fiscal Quarter following the Closing Date is delivered or
required to be delivered by the Borrower to the Administrative Agent pursuant
to clause (d) of Section 7.1.1, a fee which shall accrue at a rate of 1/2 of 1%
per annum, and (b) for each day thereafter, a fee which shall accrue at the
applicable rate per annum set forth below under the column entitled "Applicable
Commitment Fee", determined by reference to the Leverage Ratio as in effect for
the Fiscal Quarter last ended as of such time of determination:
APPLICABLE
LEVERAGE RATIO COMMITMENT FEE
greater than or equal to 2.50 0.500%
less than 2.50 0.375%
With respect to any time of determining the Applicable Commitment Fee, the
Leverage Ratio used to compute the Applicable Commitment Fee shall be equal to
the Leverage Ratio set forth in the Compliance Certificate most recently
delivered by the Borrower to the Administrative Agent, as of such time of
determination pursuant to clause (d) of Section 7.1.1. Changes in the
Applicable Commitment Fee resulting from a change in the Leverage Ratio shall
become
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effective upon delivery by the Borrower to the Administrative Agent of a new
Compliance Certificate pursuant to clause (d) of Section 7.1.1. If the Borrower
fails to deliver a Compliance Certificate within the number of days required
pursuant to clause (d) of Section 7.1.1, the Applicable Commitment Fee from and
including the first day after the date on which such Compliance Certificate was
required to be delivered through (but excluding) the date the Borrower actually
delivers to the Administrative Agent an appropriately completed Compliance
Certificate shall conclusively equal the highest Applicable Commitment Fee set
forth above.
"Applicable Margin" means at all times during the applicable periods
set forth below,
(a) with respect to the unpaid principal amount of each Term
Loan maintained as a (i) Base Rate Loan, 2.00% per annum and (ii) LIBO
Rate Loan, 3.00% per annum;
(b) from the Closing Date through (but excluding) the date
upon which the Compliance Certificate for the second full Fiscal
Quarter following the Closing Date is delivered by the Borrower to the
Administrative Agent pursuant to clause (d) of Section 7.1.1, with
respect to the unpaid principal amount of (i) each Swing Line Loan
(each of which shall be borrowed and maintained only as a Base Rate
Loan), 1.50% per annum, and (ii) each Revolving Loan maintained as (A)
a Base Rate Loan, 1.50% per annum, and (B) a LIBO Rate Loan, 2.50% per
annum; and
(c) at all times after the date of such delivery of the
Compliance Certificate described in clause (b) above, with respect to
the unpaid principal amount of each Swing Line Loan (each of which
shall be borrowed and maintained only as a Base Rate Loan) and each
Revolving Loan, by reference to the Leverage Ratio and at the
applicable percentage per annum set forth below under the column
entitled "Applicable Margin for Base Rate Loans", in the case of Swing
Line Loans or Revolving Loans maintained as Base Rate Loans, or by
reference to the Leverage Ratio and at the applicable percentage per
annum set forth below under the column entitled "Applicable Margin for
LIBO Rate Loans" in the case of Revolving Loans maintained as LIBO
Rate Loans:
APPLICABLE MARGIN FOR REVOLVING LOANS AND SWING LINE LOANS
APPLICABLE APPLICABLE
MARGIN FOR MARGIN FOR
LEVERAGE RATIO BASE RATE LOANS LIBO RATE LOANS
-------------- --------------- ---------------
greater than or equal to 3.00 1.50% 2.50%
less than 3.00 and greater than or equal to 2.50 1.00% 2.00%
less than 2.50 and greater than or equal to 2.00 0.50% 1.50%
less than 2.00 0.25% 1.25%
The Leverage Ratio used to compute the Applicable Margin for Swing Line Loans
and Revolving Loans shall be equal to the Leverage Ratio set forth in the
Compliance Certificate most recently delivered by the Borrower to the
Administrative Agent pursuant to clause (d) of Section 7.1.1. Changes in the
Applicable Margin for such Loans resulting from a change in the
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Leverage Ratio shall become effective upon delivery by the Borrower to the
Administrative Agent of a new Compliance Certificate pursuant to clause (d) of
Section 7.1.1. If the Borrower fails to deliver a Compliance Certificate within
the number of days required pursuant to clause (d) of Section 7.1.1, the
Applicable Margin for Swing Line Loans and Revolving Loans from and including
the first day after the date on which such Compliance Certificate was required
to be delivered through (but excluding) the date the Borrower delivers to the
Administrative Agent an appropriately completed Compliance Certificate shall
conclusively equal the highest Applicable Margin for Swing Line Loans and
Revolving Loans of the same type set forth above.
"Arranger" means Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation,
a Delaware corporation.
"Assigned Amount" is defined in Section 11.11.1.
"Assignee Lender" is defined in Section 11.11.1.
"Assignor Lender" is defined in Section 11.11.1.
"Authorized Officer" means, relative to any Obligor, those of its
officers whose signatures and incumbency shall have been certified to the
Administrative Agent and the Lenders pursuant to Section 5.1.1.
"Base Financial Statements" is defined in clause (a) of Section 5.1.8.
"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"Borrower" is defined in the preamble.
"Borrower Closing Date Certificate" means a certificate of an
Authorized Officer of the Borrower substantially in the form of Exhibit D-2
hereto, delivered pursuant to Section 5.1.3.
"Borrower Partnership Agreement" means the Second Amended and Restated
Agreement of Partnership of Xxxxx Xxxxx, dated as of September 25, 1992,
between Daboco and DRI, as in effect on the Closing Date and as amended or
otherwise modified from time to time in accordance with the terms hereof and
thereof.
"Borrower Pledge Agreement" means the Pledge Agreement executed and
delivered by an Authorized Officer of the Borrower pursuant to Section 7.1.7,
substantially in the form of Exhibit G-2 hereto, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"Borrower Security Agreement" means the Security Agreement executed
and delivered by an Authorized Officer of the Borrower pursuant to Section
5.1.6, substantially in the form of
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Exhibit F-2 hereto, as amended, supplemented, amended and restated or otherwise
modified from time to time.
"Borrowing" means Loans of the same type and, in the case of LIBO Rate
Loans, having the same Interest Period made by the relevant Lenders on the same
Business Day and pursuant to the same Borrowing Request in accordance with
Section 2.1.
"Borrowing Request" means a loan request and certificate duly executed
by an Authorized Officer of the Borrower, substantially in the form of Exhibit
B-1 hereto.
"Business Day" means any day which is neither a Saturday or Sunday nor
a legal holiday on which banks are authorized or required to be closed in New
York City or Boston, Massachusetts and, with respect to Borrowings of, interest
rate determinations with respect to, Interest Periods with respect to, payments
of principal and interest in respect of, conversions of Base Rate Loans into,
and continuations of LIBO Rate Loans as, LIBO Rate Loans, on which dealings in
Dollars are carried on in the London interbank market.
"Capital Expenditures" means, with respect to any Person, for any
period, the sum (without duplication) of (a) the aggregate amount of all
expenditures of such Person and its Subsidiaries for fixed or capital assets
made during such period which, in accordance with GAAP, would be classified as
capital expenditures, and (b) the aggregate amount of all Capitalized Lease
Liabilities incurred during such period by such Person and its Subsidiaries.
"Capital Stock" means, with respect to any Person, (a) any and all
shares, interests, participations, rights or other equivalents of or interests
in (however designated) corporate or capital stock, including shares of
preferred or preference stock of such Person, (b) all partnership interests
(whether general or limited) in such Person, (c) all membership interests or
limited liability company interests in such Person, and (d) all other equity or
ownership interests in such Person of any other type.
"Capitalized Lease Liabilities" means (without duplication) all
monetary obligations of the Borrower or any of its Subsidiaries under any
leasing or similar arrangement which, in accordance with GAAP, would be
classified as capitalized leases, and, for purposes of this Agreement and each
other Loan Document, the amount of such obligations shall be the capitalized
amount thereof, determined in accordance with GAAP, and the stated maturity
thereof shall be the date of the last payment of rent or any other amount due
under such lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a penalty.
"Cash Equivalent Investment" means, at any time:
(a) any evidence of Indebtedness, maturing not more than one
year after such time, issued directly, or guaranteed, by the United
States of America or any agency thereof;
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(b) commercial paper, maturing not more than nine months from
the date of issue, which is issued by (i) a corporation (other than an
Affiliate of any Obligor) organized under the laws of any state of the
United States or of the District of Columbia and rated at least A-l by
S&P or P-l by Xxxxx'x, or (ii) any Lender (or its holding company);
(c) any time deposit, certificate of deposit or banker's
acceptance, maturing not more than one year after such time,
maintained with or issued by either (i) a commercial banking
institution (including U.S. branches of foreign banking institutions)
that is a member of the Federal Reserve System and has a combined
capital and surplus and undivided profits of not less than
$500,000,000, or (ii) any Lender;
(d) short-term tax-exempt securities rated not lower than
MIG-1/1+ by either Xxxxx'x or S&P with provisions for liquidity or
maturity accommodations of 183 days or less;
(e) repurchase agreements which (i) are entered into with any
entity referred to in clause (b) or (c) above or any other financial
institution whose unsecured long-term debt (or the unsecured long-term
debt of whose holding company) is rated at least A- or better by S&P
or Baa1 or better by Xxxxx'x and maturing not more than one year after
such time, (ii) are secured by a fully perfected security interest in
securities of the type referred to in clauses (a) through (c) above
and (iii) have a market value at the time of such repurchase agreement
is entered into of not less than 100% of the repurchase obligation of
such counterparty entity with whom such repurchase agreement has been
entered into; or
(e) shares of investment companies that are registered under
the Investment Company Act of 1940, as amended and invest solely in
one or more of the types of securities described in clauses (a)
through (d) above.
"Casualty Event" means the damage, destruction or condemnation, as the
case may be, of any property of the Borrower, any Parent Guarantor or any of
their respective Subsidiaries.
"Casualty Proceeds" means, with respect to any Casualty Event, the
amount of any insurance proceeds or condemnation awards received by the
Borrower, any Parent Guarantor or any of their respective Subsidiaries in
connection therewith, but excluding any proceeds or awards required to be paid
to a creditor (other than the Lenders) which holds a first-priority Lien
permitted by Section 7.2.3 on the property which is the subject of such
Casualty Event.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
-7-
"Change in Control" means
(a) (i) the failure of Daboco or DRI to be a general partner
of the Borrower, or (ii) there shall be any general partner or limited
partner of the Borrower other than Daboco and DRI;
(b) the failure of Daboco at any time to own, free and clear
of all Liens (other than the Liens granted in favor of the
Administrative Agent for the benefit of the Secured Parties under the
Loan Documents) and encumbrances, all right, title and interest in
100% of the Capital Stock of DRI on a fully diluted basis;
(c) the failure of Holdings at any time to own, free and
clear of all Liens (other than the Liens granted in favor of the
Administrative Agent for the benefit of the Secured Parties under the
Loan Documents) and encumbrances, all right, title and interest in
100% of the Capital Stock of Daboco on a fully diluted basis;
(d) the failure of the DLJMB Entities and their controlled
Affiliates to (i) own, free and clear of all Liens and encumbrances, a
majority of the Capital Stock of Holdings on a fully diluted basis, or
(ii) have the right to elect a majority of the Board of Directors of
Holdings; or
(e) any "Change of Control" as such term is defined in the
Holdings Subordinated Note Indenture or the Senior Note Indenture.
"Closing Date" means the date of the initial Credit Extension.
"Closing Date Certificate" means, as the context may require, the
Holdings Closing Date Certificate and/or the Borrower Closing Date Certificate.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means, as the context may require, (a) a Lender's Term
Loan Commitment, Revolving Loan Commitment and/or Letter of Credit Commitment
and/or (b) the Swing Line Lender's Swing Line Loan Commitment.
"Commitment Amount" means, as the context may require, the Term Loan
Commitment Amount, the Revolving Loan Commitment Amount, the Letter of Credit
Commitment Amount and/or the Swing Line Loan Commitment Amount.
"Commitment Letter" means the commitment letter, dated September 8,
1997, among the Borrower, the Arranger and the Syndication Agent, together with
all annexes thereto.
"Commitment Termination Date" means, as the context may require, the
Revolving Loan Commitment Termination Date and/or the Term Loan Commitment
Termination Date.
-8-
"Commitment Termination Event" means (a) the occurrence of any Event
of Default described in clauses (a) through (d) of Section 8.1.9, or (b) the
occurrence and continuance of any other Event of Default and either (i) the
declaration of the Loans to be due and payable pursuant to Section 8.3, or (ii)
in the absence of such declaration, the giving of notice to the Borrower by the
Administrative Agent, acting at the direction of the Required Lenders, that the
Commitments have been terminated.
"Compliance Certificate" means a certificate duly completed and
executed by the chief financial or accounting Authorized Officer of the
Borrower, substantially in the form of Exhibit E hereto.
"Contingent Liability" means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or is
contingently liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to, or otherwise to
invest in, a debtor, or otherwise to assure a creditor against loss) the
indebtedness, obligation or any other liability of any other Person (other than
by endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other
Person. The amount of any Person's obligation under any Contingent Liability
shall (subject to any limitation set forth therein) be deemed to be the
outstanding principal amount of the debt, obligation or other liability
guaranteed thereby.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
Borrower, substantially in the form of Exhibit C hereto.
"Controlled Group" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower, are treated as a single employer under Section 414(b) or 414(c) of
the Code or Section 4001 of ERISA, or for purposes of Section 412 of the Code,
Section 414(m) or Section 414(o) of the Code.
"Credit Extension" means, as the context may require, (a) the making
of a Loan by a Lender and/or (b) the issuance of any Letter of Credit, or the
extension of any Stated Expiry Date of any previously issued Letter of Credit,
by the Issuer.
"Credit Extension Request" means, as the context may require, any
Borrowing Request and/or Issuance Request.
"Credit Lyonnais" is defined in the preamble.
"Daboco" is defined in the preamble.
"Debt" means (without duplication) the aggregate amount of all
Indebtedness of the Borrower and its Subsidiaries that is of the type referred
to in clauses (a), (b), (c) and (f) of the definition of "Indebtedness" and any
Contingent Liability in respect of such Indebtedness.
-9-
"Default" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would, unless cured or
waived, constitute an Event of Default.
"Disbursement" is defined in Section 2.6.2.
"Disbursement Date" is defined in Section 2.6.2.
"Disbursement Due Date" is defined in Section 2.6.2.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I, as it may be amended, supplemented or otherwise modified from time
to time by the Borrower with the written consent of the Required Lenders.
"DLJ" is defined in the preamble.
"DLJMB Entities" means DLJMB Funding II, Inc., DLJ Merchant Banking
Partners II, L.P., DLJ Merchant Banking Partners II-A, L.P., DLJ Diversified
Partners, L.P., DLJ Diversified Partners-A, L.P., DLJ First ESC L.L.C., DLJ
Offshore Partners II, C.V., DLJ EAB Partners, L.P., DLJ Millennium Partners,
L.P., DLJ Millennium-A Partners, L.P. and UK Investment Plan 1997 Partners.
"Documentation Agent" is defined in the preamble and includes each
other Person as shall have subsequently been appointed as the successor
Documentation Agent pursuant to Section 10.4.
"Dollar" and the symbol "$" mean lawful money of the United States.
"DRI" is defined in the preamble.
"EBITDA" means, for any applicable period, the sum (without
duplication) for the Borrower and its Subsidiaries on a consolidated basis of
(a) Net Income,
plus
(b) the amount deducted in determining Net Income
representing non-cash charges, including depreciation, amortization
and deferred rent,
plus
(c) the amount deducted in determining Net Income
representing income taxes (whether actually paid or deferred),
-10-
plus
(d) the amount deducted in determining Net Income
representing Interest Expense,
plus
(e) the amount deducted in determining Net Income
representing extraordinary or non-recurring expenses,
minus
(f) an amount equal to the amount of all extraordinary or
non-recurring non-cash credits included in determining Net Income,
minus
(g) Restricted Payments of the type referred to in clause
(d)(i) of Section 7.2.6 made during such applicable period.
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules and regulations (including consent
decrees and administrative orders) relating to public health and safety and
protection of the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default" is defined in Section 8.1.
"Excess Cash Flow" means, for any applicable period, the excess (if
any), of
(a) EBITDA for such applicable period;
over
(b) the sum (without duplication) (for such applicable
period) of
(i) the cash portion of Interest Expense (net of
interest income) for such applicable period;
plus
(ii) scheduled payments and optional and mandatory
prepayments, to the extent actually made, of the principal
amount of the Term Loans or any other term Debt (including
the principal component of payments in respect of Capitalized
Lease Liabilities) and mandatory prepayments of the principal
amount of the
-11-
Revolving Loans pursuant to clause (f) of Section 3.1.1 in
connection with a permanent reduction of the Revolving Loan
Commitment Amount, in each case for such applicable period;
plus
(iii) all federal, state and foreign income taxes
actually paid in cash by the Borrower and its Subsidiaries
for such applicable period;
plus
(iv) Capital Expenditures of the Borrower and its
Subsidiaries actually made during such applicable period
pursuant to clause (a) of Section 7.2.7 (excluding Capital
Expenditures of the Borrower and its Subsidiaries
constituting Capitalized Lease Liabilities and by way of the
incurrence of Indebtedness permitted pursuant to clause (f)
of Section 7.2.2 to a vendor of any assets permitted to be
acquired pursuant to Section 7.2.7 to finance the acquisition
of such assets);
plus
(v) Investments permitted and actually made, in
cash, pursuant to clauses (d) and (i) of Section 7.2.5 during
such applicable period;
plus
(vi) Restricted Payments of the types described in
clauses (c) and (d)(ii) of Section 7.2.6 made during such
applicable period;
plus
(vii) the amount of the net increase (or minus a
net decrease) of current assets, other than cash and Cash
Equivalent Investments, over current liabilities of the
Borrower and its Subsidiaries for such applicable period;
minus
(viii) the amount of tax refunds received by the
Parent Guarantors, the Borrower and their respective
Subsidiaries during such applicable period.
"Existing Credit Agreement" is defined in the first recital.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to (a) the weighted
average of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds
-12-
brokers, as published for such day (or, if such day is not a Business Day, for
the next preceding Business Day) by the Federal Reserve Bank of New York, or
(b) if such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by the
Administrative Agent from three federal funds brokers of recognized standing
selected by it.
"Fee Letter" means the confidential fee letter, dated as of September
8, 1997, among the Borrower, the Arranger and the Syndication Agent.
"Fiscal Quarter" means any fiscal quarter of a Fiscal Year, which
fiscal quarters shall end on the last Saturday of each March, June, September
or December of such Fiscal Year.
"Fiscal Year" means any period of twelve consecutive months ending on
the last Saturday of December of any calendar year.
"Fixed Charge Coverage Ratio" means, at the end of any Fiscal Quarter,
the ratio computed for the period consisting of such Fiscal Quarter and each of
the three immediately prior Fiscal Quarters of
(a) EBITDA for all such Fiscal Quarters
to
(b) the sum (without duplication) of
(i) Capital Expenditures of the Borrower and its
Subsidiaries actually made during all such Fiscal Quarters
pursuant to clause (a) of Section 7.2.7 (excluding Capital
Expenditures of the Borrower and its Subsidiaries
constituting Capitalized Lease Liabilities and by way of the
incurrence of Indebtedness permitted pursuant to clause (f)
of Section 7.2.2 to a vendor of any assets permitted to be
acquired pursuant to Section 7.2.7 to finance the acquisition
of such assets);
plus
(ii) the cash portion of Interest Expense (net of
cash interest income) for all such Fiscal Quarters;
plus
(iii) all scheduled payments of principal of the
Term Loans and other term Debt (including the principal
component of payments in respect of any Capitalized Lease
Liabilities) during all such Fiscal Quarters;
-13-
plus
(iv) all federal, state and foreign income taxes
actually paid in cash by the Borrower and its Subsidiaries
for such applicable period;
plus
(v) Restricted Payments of the types described in
clauses (c), (d)(ii) and (e) of Section 7.2.6 made during
such applicable period.
"Fleet" is defined in the preamble.
"Foreign Subsidiary" means any Subsidiary of the Borrower (a) which is
organized under the laws of any jurisdiction outside of the United States of
America, (b) which conducts the major portion of its business outside of the
United States of America and (c) all or substantially all of the property and
assets of which are located outside of the United States of America.
"F.R.S. Board" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"GAAP" is defined in Section 1.4.
"Guarantees" means, as the context may require, the Parent Guaranty
and/or the Subsidiary Guaranty.
"Guarantors" means, collectively, the Parent Guarantors and the
Subsidiary Guarantors, if any.
"Hazardous Material" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or
toxic chemical, material or substance within the meaning of any other
applicable federal, state or local law, regulation, ordinance or
requirement (including consent decrees and administrative orders)
relating to or imposing liability or standards of conduct concerning
any hazardous, toxic or dangerous waste, substance or material, all as
amended or hereafter amended.
-14-
"Hedging Obligations" means, with respect to any Person, all
liabilities of such Person under interest rate swap agreements, interest rate
cap agreements and interest rate collar agreements, and all other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or currency exchange rates.
"herein", "hereof", "hereto", "hereunder" and similar terms contained
in this Agreement or any other Loan Document refer to this Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular
Section, paragraph or provision of this Agreement or such other Loan Document.
"Holdings" is defined in the preamble.
"Holdings Closing Date Certificate" means a certificate of an
Authorized Officer of Holdings substantially in the form of Exhibit D-1 hereto,
delivered pursuant to Section 5.1.3.
"Holdings Subordinated Note Documents" shall mean and include each of
the documents and other agreements entered into by Holdings (including the
Holdings Subordinated Note Indenture) relating to the issuance by Holdings of
the Holdings Subordinated Notes, as in effect on the Closing Date and as the
same may be modified, supplemented or amended from time to time pursuant to the
terms hereof and thereof.
"Holdings Subordinated Note Indenture" shall mean the Indenture
entered into by and between Holdings and The Connecticut National Bank, as
trustee thereunder, as in effect on the Closing Date and as the same may be
amended or otherwise modified from time to time in accordance with the terms
hereof and thereof.
"Holdings Subordinated Notes" shall mean the Subordinated Debentures
due 2004 issued by Holdings under the Holdings Subordinated Note Indenture, as
in effect on the Closing Date and as the same may be amended or otherwise
modified from time to time in accordance with the terms hereof and thereof.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial
statement of any Obligor, any qualification or exception to such opinion or
certification (a) which is of a "going concern" or similar nature, (b) which
relates to the limited scope of examination of matters relevant to such
financial statement, or (c) which relates to the treatment or classification of
any item in such financial statement and which, as a condition to its removal,
would require an adjustment to such item the effect of which would be to cause
such Obligor to be in default of any of its obligations under Section 7.2.4.
"including" means including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of ejusdem generis
shall not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
-15-
"Indebtedness" of any Person means (without duplication):
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments;
(b) all obligations, contingent or otherwise, relative to the
face amount of all letters of credit, whether or not drawn, and
banker's acceptances issued for the account of such Person;
(c) all obligations of such Person as lessee under leases
which have been or should be, in accordance with GAAP, recorded as
Capitalized Lease Liabilities;
(d) all other items which, in accordance with GAAP, would be
included as liabilities on the liability side of the balance sheet of
such Person as of the date at which Indebtedness is to be determined;
(e) net liabilities of such Person under all Hedging
Obligations;
(f) whether or not so included as liabilities in accordance
with GAAP, all obligations of such Person to pay the deferred purchase
price of property or services, and indebtedness (excluding prepaid
interest thereon) secured by a Lien on property owned or being
purchased by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not
such indebtedness shall have been assumed by such Person or is limited
in recourse; provided, however, that, to the extent such Indebtedness
is limited in recourse to the assets securing such Indebtedness, the
amount of such Indebtedness shall be limited to the fair market value
of such assets;
(g) Redeemable Capital Stock; and
(h) all Contingent Liabilities of such Person in respect of
any of the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall
include the Indebtedness of any partnership or joint venture in which such
Person is a general partner or a joint venturer (to the extent such Person is
liable for such Indebtedness).
"Indemnified Liabilities" is defined in Section 11.4.
"Indemnified Parties" is defined in Section 11.4.
"Initial Public Offering" mean for any Person, any sale of the Capital
Stock of such Person to the public pursuant to an initial primary offering
registered under the Securities Act of 1933.
-16-
"Interest Coverage Ratio" means, at the end of any Fiscal Quarter, the
ratio computed for the period consisting of such Fiscal Quarter and each of the
three immediately prior Fiscal Quarters of:
(a) EBITDA (for all such Fiscal Quarters)
to
(b) the cash portion of Interest Expense (for all such Fiscal
Quarters).
"Interest Expense" means, for any applicable period, the aggregate
consolidated interest expense of the Borrower and its Subsidiaries for such
applicable period, as determined in accordance with GAAP, including the portion
of any payments made in respect of Capitalized Lease Liabilities allocable to
interest expense.
"Interest Period" means, as to any LIBO Rate Loan, the period
commencing on the Borrowing date of such Loan or on the date on which the Loan
is converted into or continued as a LIBO Rate Loan, and ending on the date one,
two, three or six months thereafter as selected by the Borrower in its
Borrowing Request or its Conversion/Continuation Notice; provided, however
that:
(a) if any Interest Period would otherwise end on a day that
is not a Business Day, that Interest Period shall be extended to the
following Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month, in which event
such Interest Period shall end on the immediately preceding Business
Day;
(b) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at
the end of such Interest Period;
(c) no Interest Period for any Loan shall extend beyond the
Stated Maturity Date for such Loan;
(d) no Interest Period applicable to a Term Loan or any
portion thereof shall extend beyond any date upon which is due any
scheduled principal payment in respect of the Term Loans unless the
aggregate principal amount of Term Loans represented by Base Rate
Loans, or by LIBO Rate Loans having Interest Periods that will expire
on or before such date, equals or exceeds the amount of such principal
payment; and
(e) there shall be no more than five Interest Periods in
effect at any one time.
"Investment" means, relative to any Person, (a) any loan or advance
made by such Person to any other Person (excluding commission, travel and
similar advances to officers, directors
-17-
and employees (or individuals acting in similar capacities) made in the
ordinary course of business), and (b) any ownership or similar interest held by
such Person in any other Person. The amount of any Investment shall be the
original principal or capital amount thereof less all returns of principal or
equity thereon (and without adjustment by reason of the financial condition of
such other Person) and shall, if made by the transfer or exchange of property
other than cash, be deemed to have been made in an original principal or
capital amount equal to the fair market value of such property at the time of
such transfer or exchange.
"Issuance Request" means a Letter of Credit request and certificate
duly executed by an Authorized Officer of the Borrower, substantially in the
form of Exhibit B-2 hereto.
"Issuer" means Fleet, in its capacity as issuer of Letters of Credit
and any Lender as may be designated by the Borrower (and consented to by the
Agents and such Lender, such consent by the Agents not to be unreasonably
withheld), in its capacity as issuer of Letters of Credit.
"Lender Assignment Agreement" means a Lender Assignment Agreement,
substantially in the form of Exhibit J hereto.
"Lenders" is defined in the preamble.
"Letter of Credit" is defined in Section 2.1.3.
"Letter of Credit Commitment" means, with respect to the Issuer, the
Issuer's obligation to issue Letters of Credit pursuant to Section 2.1.3 and,
with respect to each of the other Lenders that has a Revolving Loan Commitment,
the obligation of each such Lender to participate in such Letters of Credit
pursuant to Section 2.6.1.
"Letter of Credit Commitment Amount" means, on any date, $10,000,000,
as such amount may be reduced from time to time pursuant to Section 2.2.
"Letter of Credit Outstandings" means, on any date, an amount equal to
the sum of
(a) the then aggregate amount which is undrawn and available
under all issued and outstanding Letters of Credit,
plus
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations in respect of such Letters of Credit.
"Leverage Ratio" means, at the end of any Fiscal Quarter, the ratio of
(a) total Debt of the Borrower and its Subsidiaries on a
consolidated basis outstanding at such time;
-18-
to
(b) EBITDA for the period of four consecutive Fiscal Quarters
ended on such date.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate
Loans, the interest rate per annum for deposits in Dollars, if any, for a
period equal to the relevant Interest Period which appears on Telerate Page
3750 at approximately 11:00 a.m., London time, prior to the commencement of
such Interest Period. If such a rate does not appear on Telerate Page 3750, the
LIBO Rate shall be the rate of interest per annum determined by the
Administrative Agent to be the arithmetic mean (rounded upward to the next
1/16th of 1%) of the rates of interest per annum at which dollar deposits in
the approximate amount of the Loan to be made or continued as, or converted
into, a LIBO Rate Loan by the Administrative Agent and having a maturity
comparable to such Interest Period would be offered to the Administrative Agent
in the London interbank market at its request at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period.
"LIBO Rate Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate of interest determined
by reference to the LIBO Rate (Reserve Adjusted).
"LIBO Rate (Reserve Adjusted)" means, relative to any Loan to be made,
continued or maintained as, or converted into, a LIBO Rate Loan for any
Interest Period, the rate of interest per annum (rounded upwards to the next
1/16th of 1%) determined by the Administrative Agent as follows:
LIBO Rate LIBO Rate
(Reserve = -----------------------------------------
Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate
Loans will be adjusted automatically as to all LIBO Rate Loans then outstanding
as of the effective date of any change in the LIBOR Reserve Percentage.
"LIBOR Office" means, relative to any Lender, the office of such
Lender designated as such on Schedule II hereto or designated in the Lender
Assignment Agreement pursuant to which such Lender became a Lender hereunder or
such other office of a Lender as shall be so designated from time to time by
notice from such Lender to the Borrower and the Administrative Agent, which
shall be making or maintaining LIBO Rate Loans of such Lender hereunder.
"LIBOR Reserve Percentage" means, relative to any Interest Period for
LIBO Rate Loans, the percentage (expressed as a decimal, rounded upward to the
next 1/16th of 1%) in effect on such day (whether or not applicable to any
Lender) under regulations issued from time to time
-19-
by the F.R.S. Board for determining the maximum reserve requirement (including
any emergency, supplemental or other marginal reserve requirement) with respect
to Eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the F.R.S. Board).
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property, or any filing or recording of any
instrument or document in respect of the foregoing, to secure payment of a debt
or performance of an obligation or any other priority or preferential treatment
of any kind or nature whatsoever that has the practical effect of creating a
security interest in property.
"Loan" means, as the context may require, a Revolving Loan, a Term
Loan and/or a Swing Line Loan, of any type.
"Loan Document" means this Agreement, the Notes, the Letters of
Credit, each Rate Protection Agreement, each Borrowing Request, each Issuance
Request, the Fee Letter, each Pledge Agreement, the Subsidiary Guaranty, each
Mortgage (upon execution and delivery thereof), each Security Agreement and
each other agreement, document or instrument delivered in connection with this
Agreement or any other Loan Document, whether or not specifically mentioned
herein or therein.
"Material Adverse Effect" means (a) a material adverse effect on the
business, assets, debt service capacity, tax position, environmental liability,
financial condition, operations, properties or prospects of the Borrower and
its Subsidiaries, taken as a whole, or Holdings and its Subsidiaries, taken as
a whole, (b) a material impairment of the ability of the Borrower or any other
Obligor to perform its respective material obligations under the Loan Documents
to which it is or will be a party, or (c) an impairment of the validity or
enforceability of, or a material impairment of the rights, remedies or benefits
available to the Issuer, the Agents, the Documentation Agent, the Arranger or
the Lenders under this Agreement or any other Loan Document.
"Material Documents" means the Senior Note Documents, the Holdings
Subordinated Note Documents, the Recapitalization Agreement, the Rapid Remit
Program Documents and the Borrower Partnership Agreement, each as amended or
otherwise modified from time to time in accordance with the terms thereof and
hereof.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage" means, collectively, each Mortgage or Deed of Trust
executed and delivered pursuant to the terms of this Agreement, including
Section 5.1.7 or 7.1.8(b), in form and substance reasonably satisfactory to the
Agents.
-20-
"Net Debt Proceeds" means, with respect to the incurrence, sale or
issuance by the Borrower, any Parent Guarantor or any of its Subsidiaries of
any Debt (other than Debt permitted by Section 7.2.2 as in effect on the date
hereof), the excess of:
(a) the gross cash proceeds received by the Borrower, any
Parent Guarantor or any of their respective Subsidiaries from such
incurrence, sale or issuance,
over
(b) all reasonable and customary underwriting commissions and
legal, investment banking, brokerage and accounting and other
professional fees, sales commissions and disbursements and all other
reasonable fees, expenses and charges, in each case actually incurred
in connection with such incurrence, sale or issuance.
"Net Disposition Proceeds" means, with respect to any sale, transfer
or other disposition of any assets of the Borrower, any Parent Guarantor or any
of their respective Subsidiaries (other than sales permitted pursuant to clause
(a), (b) or (c) of Section 7.2.9), the excess of
(a) the gross cash proceeds received by the Borrower, any
Parent Guarantor or any of their respective Subsidiaries from any such
sale, transfer or other disposition and any cash payments received in
respect of promissory notes or other non-cash consideration delivered
to the Borrower, such Parent Guarantor or such Subsidiary in respect
thereof,
less
(b) the sum (without duplication) of (i) all reasonable and
customary fees and expenses with respect to legal, investment banking,
brokerage, accounting and other professional fees, sales commissions
and disbursements and all other reasonable fees, expenses and charges,
in each case actually incurred in connection with such sale, transfer
or other disposition, (ii) all taxes and other governmental costs and
expenses actually paid or estimated by the Borrower (in good faith) to
be payable in cash in connection with such sale, transfer or other
disposition, and (iii) payments made by the Borrower, any Parent
Guarantor or any of their respective Subsidiaries to retire
Indebtedness (other than the Credit Extensions) of the Borrower, such
Parent Guarantor or such Subsidiary where payment of such Indebtedness
is required in connection with such sale, transfer or other
disposition;
provided, however, that if, after the payment of all taxes with respect to such
sale, transfer or other disposition, the amount of estimated taxes, if any,
pursuant to clause (b)(ii) above exceeded the tax amount actually paid in cash
in respect of such sale, transfer or other disposition, the aggregate amount of
such excess shall, at such time, constitute Net Disposition Proceeds.
"Net Equity Proceeds" means with respect to the sale or issuance by
the Borrower, any Parent Guarantor or any of their respective Subsidiaries to
any Person of any of its Capital Stock
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or any warrants or options with respect to its Capital Stock or the exercise of
any such warrants or options after the Closing Date (other than pursuant to (i)
capital contributions (from other than an Initial Public Offering) which are
concurrently contributed to the Borrower or any of its Subsidiaries, (ii) any
subscription agreement, incentive plan or similar arrangement with any officer,
employee or director of the Borrower, such Parent Guarantor or such Subsidiary
or (iii) the sale or issuance by Holdings of Capital Stock (other than
Redeemable Capital Stock), which shall by its terms provide for dividends (if
any) payable only in additional shares of such Capital Stock until no earlier
than the first anniversary of the Stated Maturity Date for the Term Loans, to
any of the DLJMB Entities or any of their Affiliates for gross cash proceeds in
an aggregate amount not to exceed $10,000,000 subsequent to the Closing Date),
the excess of:
(a) the gross cash proceeds received by the Borrower, such
Parent Guarantor or such Subsidiary from such sale, exercise or
issuance,
over
(b) all reasonable and customary underwriting commissions and
legal, investment banking, brokerage, accounting and other
professional fees, sales commissions and disbursements and all other
reasonable fees, expenses and charges, in each case actually incurred
in connection with such sale, exercise or issuance.
"Net Income" means, for any period, the net income of the Borrower and
its Subsidiaries for such period on a consolidated basis, excluding
extraordinary and non-recurring gains and extraordinary losses incurred in
connection with the refinancing of the Holdings Subordinated Notes or the
Senior Notes.
"Net Worth" means the consolidated net worth of the Borrower and its
Subsidiaries.
"Note" means, as the context may require, a Revolving Note, a Term
Note, a Swing Line Note and/or a Registered Note.
"Obligations" means all obligations (monetary or otherwise) of the
Borrower and each other Obligor arising under or in connection with this
Agreement, any Rate Protection Agreement, the Notes, each Letter of Credit and
each other Loan Document.
"Obligor" means the Borrower or any other Person (other than any
Agent, the Documentation Agent, the Arranger, the Issuer or any Lender)
obligated under any Loan Document.
"Organic Document" means, relative to any Obligor, its partnership
agreement, its certificate of incorporation, its by-laws and all shareholder or
equity holder agreements, voting trusts and similar arrangements to which such
Obligor is a party or which is applicable to any of its Capital Stock, its
partnership agreement and all other arrangements relating to the control or
management of such entity.
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"Paid Visit" is defined in Section 7.1.5.
"Parent Guarantors" is defined in the preamble.
"Parent Guaranty" means the Obligations of the Parent Guarantors under
Article IX.
"Parent Pledge Agreement" means the Pledge Agreement executed and
delivered by an Authorized Officer of each of Holdings and Daboco pursuant to
Section 5.1.5, substantially in the form of Exhibit G-1 hereto, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Participant" is defined in Section 11.11.2.
"Partnership Security Agreement" means the Security Agreement executed
and delivered by an Authorized Officer of each of Daboco and DRI pursuant to
Section 5.1.6, substantially in the form of Exhibit F-1 hereto, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor entity.
"Pension Plan" means a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in section 4001(a)(3) of ERISA), and to which the
Borrower or any corporation, trade or business that is, along with the
Borrower, a member of a Controlled Group, has or within the prior six years has
had any liability, including any liability by reason of having been a
substantial employer within the meaning of section 4063 of ERISA at any time
during the preceding five years, or by reason of being deemed to be a
contributing sponsor under section 4069 of ERISA.
"Percentage" means, relative to any Lender, the applicable percentage
relating to Term Loans or Revolving Loans, as the case may be, as set forth
opposite its name on Schedule II hereto under the applicable column heading or
set forth in Lender Assignment Agreement(s) under the applicable column
heading, as such percentage may be adjusted from time to time pursuant to
Lender Assignment Agreement(s) executed by such Lender and its Assignee
Lender(s) and delivered pursuant to Section 11.11. A Lender shall not have any
Commitment to make Revolving Loans or Term Loans (as the case may be) if its
percentage under the respective column heading is zero. As used herein,
"Percentage" as it relates to a Lender's Percentage of Letter of Credit
Outstandings or Swing Line Loans shall be equal to such Lender's Percentage of
Revolving Loans.
"Perfection Certificate" means the Perfection Certificate executed and
delivered by an Authorized Officer of each Obligor that is a party to a
Security Agreement pursuant to Section 5.1.16 or 7.1.7, substantially in the
form of Exhibit I hereto, as amended, supplemented, amended and restated or
otherwise modified from time to time.
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"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency, limited liability company
or any other entity, whether acting in an individual, fiduciary or other
capacity.
"Pharmaceutical Laws" means Federal, state and local laws, rules or
regulations, codes, orders, decrees, judgments or injunctions issued,
promulgated, approved or entered, relating to dispensing, storing or
distributing prescription medicines or products, including laws, rules or
regulations relating to the qualifications of Persons employed to do the same.
"Pharmacy Fund" means Pharmacy Fund Receivables, Inc., a New York
corporation, and any successor thereto.
"Plan" means any Pension Plan or Welfare Plan.
"Pledge Agreement" means, as the context may require, the Parent
Pledge Agreement, the Borrower Pledge Agreement and/or the Subsidiary Pledge
Agreement.
"Prescription Receivables" is defined in clause (b) of Section 7.2.9.
"Pro Forma Balance Sheets" is defined in clause (b) of Section 5.1.8.
"Proforma Interest Coverage Ratio" means, at the end of any Fiscal
Quarter, the ratio computed for the period consisting of such Fiscal Quarter
and each of the three immediately prior Fiscal Quarters of:
(a) EBITDA (for all such Fiscal Quarters)
to
(b) the sum of
(i) cash portion of Interest Expense (for all such
Fiscal Quarters);
plus
(ii) restricted payments to be made by the Borrower
in cash pursuant to clause (c) of Section 7.2.6 at the time
of such calculation.
"Quarterly Payment Date" means the fifteenth day of each March, June,
September and December, or, if any such day is not a Business Day, the next
succeeding Business Day.
"Rapid Remit Program" shall mean the program pursuant to which
Prescription Receivables are sold by the Borrower to Pharmacy Fund for cash
pursuant to the Rapid Remit Program Documents.
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"Rapid Remit Program Documents" shall mean (a) the Purchase Agreement,
dated as of March 10, 1997, between the Borrower and Pharmacy Fund and each
other document or agreement entered into in connection therewith, in each case
as in effect on the Closing Date and as the same may be amended or otherwise
modified from time to time thereafter in accordance with the terms hereof and
thereof, and (b) each of the other documents and agreements entered into in
connection therewith after the Closing Date in form and substance satisfactory
to the Agents, and as each such other document and agreement may be amended or
otherwise modified from time to time thereafter in accordance with the terms
hereof and thereof.
"Rate Protection Agreement" means, collectively, any interest rate
swap, cap, collar or similar agreement entered into by the Borrower in respect
of the Loans pursuant to the terms of this Agreement under which the
counterparty to such agreement is (or at the time such Rate Protection
Agreement was entered into, was) a Lender or an Affiliate of a Lender.
"Real Property" means, with respect to any Person, all of the right,
title and interest of such Person in and to lands, improvements and fixtures,
including all of the rights, title and interest of such Person as Lessee or
licensee in, to and under leases or licenses of land, improvements and
fixtures.
"Recapitalization Agreement" shall mean the Recapitalization
Agreement, dated as of June 18, 1997, among the DLJMB Entities and the
stockholders parties thereto and Holdings and each other document or agreement
entered into in connection therewith, in each case as in effect on the Closing
Date and as the same may be amended or otherwise modified from time to time
thereafter in accordance with the terms hereof and thereof.
"Redeemable Capital Stock" means, with respect to any Person, any
class of Capital Stock of such Person or any of its Subsidiaries which, either
by its terms, by the terms of any security into which it is convertible or
exchangeable or otherwise, (a) is or upon the happening of an event or passage
of time would be required to be redeemed on or prior to the first anniversary
of the Stated Maturity Date for the Term Loans, (b) is redeemable at the option
of the holder thereof at any time prior to such anniversary or (c) is
convertible into or exchangeable for debt securities of such Person or any of
its Subsidiaries at any time prior to such anniversary.
"Refinancing" is defined in the first recital.
"Refunded Swing Line Loans" is defined in clause (b) of Section 2.3.2.
"Register" is defined in clause (b) of Section 2.7.
"Registered Note" means a promissory note of the Borrower payable to
the order of any Lender, in the form of Exhibit A-3 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to time in
accordance with the terms hereof and thereof), evidencing the aggregate
Indebtedness of the Borrower to such Lender resulting from outstanding Term
Loans, and also means all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.
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"Reimbursement Obligation" is defined in Section 2.6.3.
"Reinstatement Date" is defined in Section 4.1.
"Related Fund" means, with respect to any Lender that is a fund that
invests in loans, any other fund that invests in loans and is managed by the
same investment advisor or investment manager as such Lender.
"Release" means a "release", as such term is defined in CERCLA.
"Replacement Notice" is defined in Section 4.10.
"Replacement Lender" is defined in Section 4.10.
"Required Lenders" means, at any time, (a) prior to the making of the
initial Credit Extension hereunder, Lenders having at least 51% of the sum of
the Revolving Loan Commitments and Term Loan Commitments and (b) on and after
the date of the initial Credit Extension, Lenders holding at least 51% of (i)
the Total Exposure Amount or (ii) if the Revolving Loan Commitments shall have
been terminated or expired for purposes of acceleration pursuant to Section
8.3, the then outstanding Loans and Letter of Credit Outstandings.
"Resource Conservation and Recovery Act" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., as in effect
from time to time.
"Restricted Payments" is defined in Section 7.2.6.
"Revolving Loan" is defined in Section 2.1.2.
"Revolving Loan Commitment" is defined in Section 2.1.2.
"Revolving Loan Commitment Amount" means, on any date, $30,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2.
"Revolving Loan Commitment Termination Date" means the earliest of (a)
November 30, 1997 if the Term Loans have not been made on or prior to such
date, (b) June 15, 2001, (c) the date on which the Revolving Loan Commitment
Amount is terminated in full or reduced to zero pursuant to Section 2.2, and
(d) the date on which any Commitment Termination Event occurs.
"Revolving Note" means a promissory note of the Borrower payable to
any Lender, substantially in the form of Exhibit A-1 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to time in
accordance with the terms hereof and thereof), evidencing the aggregate
Indebtedness of the Borrower to such Lender resulting from
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outstanding Revolving Loans, and also means all other promissory notes accepted
from time to time in substitution therefor or renewal thereof.
"S&P" means Standard & Poor's Ratings Group, a division of The
XxXxxx-Xxxx Companies, Inc.
"Secured Parties" means the Lenders, the Issuer, the Agents, the
Documentation Agent, each counterparty to a Rate Protection Agreement that is
(or at the time such Rate Protection Agreement was entered into, was) a Lender
or an Affiliate thereof and in each case, each of their respective successors,
transferees and assigns.
"Security Agreement" means, as the context may require, the
Partnership Security Agreement, the Borrower Security Agreement and/or the
Subsidiary Security Agreement.
"Senior Note Documents" shall mean and include each of the documents
and other agreements entered into (including the Senior Note Indenture and any
additional guaranty or guaranties relating thereto) relating to the issuance by
the Borrower of the Senior Notes, as in effect on the Closing Date (to the
extent thereof) and as the same may be entered into, modified, supplemented or
amended from time to time pursuant to the terms hereof and thereof.
"Senior Note Indenture" shall mean the Indenture entered into by and
between the Borrower, Daboco and DRI and The Connecticut National Bank, as
trustee thereunder, as in effect on the Closing Date and as the same may be
amended or otherwise modified from time to time in accordance with the terms
hereof and thereof.
"Senior Notes" shall mean the Borrower's 12% Senior Notes due
September 15, 2002, Series B, as in effect on the Closing Date and as the same
may be amended or otherwise modified from time to time in accordance with the
terms hereof and thereof.
"Solvency Certificate" means, as the context may require, a Solvency
Certificate to be executed and delivered by the chief financial or accounting
Authorized Officer of Holdings, substantially in the form of Exhibit L-1 hereto
and/or a Solvency Certificate to be executed and delivered by the chief
financial or accounting Authorized Officer of the Borrower, substantially in
the form of Exhibit L-2 hereto.
"Solvent" means, with respect to any Person and its Subsidiaries on a
particular date, that on such date (a) the fair value of the property of such
Person and its Subsidiaries on a consolidated basis is greater than the total
amount of liabilities, including contingent liabilities, of such Person and its
Subsidiaries on a consolidated basis, (b) the present fair salable value of the
assets of such Person and its Subsidiaries on a consolidated basis is not less
than the amount that will be required to pay the probable liability of such
Person and its Subsidiaries on a consolidated basis on its debts as they become
absolute and matured, (c) such Person does not intend to, and does not believe
that it or its Subsidiaries will, incur debts or liabilities beyond the ability
of such Person and its Subsidiaries to pay as such debts and liabilities
mature, and (d) such Person and its Subsidiaries on a consolidated basis is not
engaged in business or a transaction, and such Person and its Subsidiaries on a
consolidated basis is not about to engage in business or a
-27-
transaction, for which the property of such Person and its Subsidiaries on a
consolidated basis would constitute an unreasonably small capital. The amount
of Contingent Liabilities at any time shall be computed as the amount that, in
light of all the facts and circumstances existing at such time, can reasonably
be expected to become an actual or matured liability.
"Stated Amount" of each Letter of Credit means the total amount
available to be drawn under such Letter of Credit upon the issuance thereof.
"Stated Expiry Date" is defined in Section 2.6.
"Stated Maturity Date" means (a) in the case of any Revolving Loan,
June 15, 2001, and (b) in the case of any Term Loan, June 15, 2002.
"Subsidiary" means, with respect to any Person, any corporation,
partnership or other business entity of which more than 50% of the outstanding
Capital Stock (or other ownership interest) having ordinary voting power to
elect a majority of the board of directors, managers or other voting members of
the governing body of such entity (irrespective of whether at the time Capital
Stock (or other ownership interests) of any other class or classes of such
entity shall or might have voting power upon the occurrence of any contingency)
is at the time directly or indirectly owned by such Person, by such Person and
one or more other Subsidiaries of such Person, or by one or more other
Subsidiaries of such Person.
"Subsidiary Guarantor" means any Subsidiary of the Borrower that,
pursuant to Section 7.1.7, executes and delivers a Subsidiary Guaranty or a
supplement to a Subsidiary Guaranty.
"Subsidiary Guaranty" means the Guaranty executed and delivered by an
Authorized Officer of a Subsidiary Guarantor pursuant to Section 7.1.7,
substantially in the form of Exhibit H hereto, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"Subsidiary Pledge Agreement" means the Pledge Agreement executed and
delivered by an Authorized Officer of each Subsidiary of the Borrower that is
not a Foreign Subsidiary pursuant to Section 7.1.7, substantially in the form
of Exhibit G-3 hereto, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Subsidiary Security Agreement" means the Security Agreement executed
and delivered by an Authorized Officer of each Subsidiary of the Borrower that
is not a Foreign Subsidiary pursuant to Section 7.1.7, substantially in the
form of Exhibit F-3 hereto, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Swing Line Lender" means Fleet, in its capacity as Swing Line Lender
hereunder.
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"Swing Line Loan" is defined in clause (b) of Section 2.1.2.
"Swing Line Loan Commitment" is defined in clause (b) of Section 2.1.2.
"Swing Line Loan Commitment Amount" means, on any date, $5,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2.
"Swing Line Note" means a promissory note of the Borrower payable to
the Swing Line Lender, in the form of Exhibit A-4 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to time),
evidencing the aggregate Indebtedness of the Borrower to the Swing Line Lender
resulting from outstanding Swing Line Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.
"Syndication Agent" is defined in the preamble and includes each other
Person as shall have subsequently been appointed as the successor Syndication
Agent pursuant to Section 10.4.
"Taxes" is defined in Section 4.6.
"Telerate Page 3750" means the display designated as "Page 3750" on
the Telerate Service (or such other page as may replace Page 3750 on the
service or such other service as may be nominated by the British Bankers'
Association as the information vendor for the purpose of displaying British
Bankers' Association interest settlement rates for Dollar deposits).
Term Loan" is defined in Section 2.1.1.
"Term Loan Commitment" is defined in Section 2.1.1.
"Term Loan Commitment Amount" means $65,475,000.
"Term Loan Commitment Termination Date" means the earliest of (a)
November 30, 1997, if the Term Loans have not been made on or prior to such
date, (b) the Closing Date (immediately after the making of the Term Loans on
such date), and (c) the date on which any Commitment Termination Event occurs.
"Term Note" means a promissory note of the Borrower payable to the
order of any Lender, in the form of Exhibit A-2 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time in accordance
with the terms hereof and thereof), evidencing the aggregate Indebtedness of
the Borrower to such Lender resulting from outstanding Term Loans, and also
means all other promissory notes accepted from time to time in substitution
therefor or renewal thereof.
"Total Exposure Amount" means, on any date of determination, the then
outstanding principal amount of all Term Loans and the Revolving Loan
Commitment Amount then in effect.
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"Tranche" means, as the context may require, the Loans constituting
Term Loans, Revolving Loans and/or Swing Line Loans.
"type" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
"UCC" means the Uniform Commercial Code as in effect from time to time
in the State of New York.
"United States" or "U.S." means the United States of America, its
fifty states and the District of Columbia.
"Waiver" means an agreement in favor of the Agents for the benefit of
the Lenders in form and substance reasonably satisfactory to the Agents.
"Welfare Plan" means a "welfare plan", as such term is defined in
section 3(1) of ERISA, and to which the Borrower has any liability.
"Wholly-owned Subsidiary" shall mean, with respect to any Person, any
Subsidiary of such Person all of the Capital Stock (and all rights and options
to purchase such Capital Stock) of which, other than directors' qualifying
shares, are owned, beneficially and of record, by such Person and/or one or
more wholly-owned Subsidiaries of such Person.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in the Disclosure Schedule and in
each other Loan Document, notice and other communication delivered from time to
time in connection with this Agreement or any other Loan Document.
SECTION 1.3. Cross-References. Unless otherwise specified, references
in this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in
any Article, Section or definition to any clause are references to such clause
of such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations. Unless otherwise
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, all accounting determinations and computations hereunder or
thereunder (including under Section 7.2.4) shall be made, and all financial
statements required to be delivered hereunder or thereunder shall be prepared
in accordance with, those generally accepted accounting principles ("GAAP"), as
in effect on December 28, 1996 and, unless otherwise expressly provided herein,
shall be computed or determined on a consolidated basis and without
duplication.
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ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES,
NOTES AND LETTERS OF CREDIT
SECTION 2.1. Commitments. On the terms and subject to the conditions
of this Agreement (including Sections 2.1.4 and 2.1.5 and Article V),
(a) each Lender severally agrees to make Loans (other than
Swing Line Loans) pursuant to the Commitments and the Swing Line
Lender agrees to make Swing Line Loans pursuant to the Swing Line Loan
Commitment, in each case as described in this Section 2.1; and
(b) the Issuer agrees that it will issue Letters of Credit
pursuant to Section 2.1.3, and each other Lender that has a Revolving
Loan Commitment severally agrees that it will purchase participation
interests in such Letters of Credit pursuant to Section 2.6.1.
SECTION 2.1.1. Term Loan Commitments. Subject to compliance by the
Borrower with the terms hereof (including Sections 2.1.4, 5.1 and 5.2), on (but
solely on) the Closing Date (which shall be a Business Day), each Lender that
has a Percentage in excess of zero of the Term Loan Commitment Amount will make
loans (relative to such Lender, its "Term Loans") to the Borrower equal to such
Lender's Percentage of the aggregate amount of the Borrowing or Borrowings of
Term Loans requested by the Borrower to be made on the Closing Date (the
commitment of each such Lender described in this Section 2.1.1 is herein
referred to as its "Term Loan Commitment"). No amounts paid or prepaid with
respect to any Term Loans may be reborrowed.
SECTION 2.1.2. Revolving Loan Commitment and Swing Line Loan
Commitment. Subject to compliance by the Borrower with the terms hereof
(including Sections 2.1.4, 5.1 and 5.2), from time to time on any Business Day
occurring on or after the Closing Date but prior to the Revolving Loan
Commitment Termination Date,
(a) each Lender that has a Percentage in excess of zero of
the Revolving Loan Commitment Amount will make loans (relative to such
Lender, its "Revolving Loans") to the Borrower equal to such Lender's
Percentage of the aggregate amount of the Borrowing or Borrowings of
Revolving Loans requested by the Borrower to be made on such day. The
Commitment of each Lender described in this clause (a) is herein
referred to as its "Revolving Loan Commitment". On the terms and
subject to the conditions hereof, the Borrower may from time to time
borrow, prepay and reborrow Revolving Loans.
(b) the Swing Line Lender will make loans (each a "Swing Line
Loan") to the Borrower equal to the principal amount of the Swing Line
Loan requested by the Borrower to be made on such day. The Commitment
of the Swing Line Lender described in this clause (b) is herein
referred to as its "Swing Line Loan Commitment".
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On the terms and subject to the conditions hereof, the
Borrower may from time to time borrow, prepay and reborrow Swing Line
Loans.
SECTION 2.1.3. Letter of Credit Commitment. Subject to compliance by
the Borrower with the terms hereof (including Sections 2.1.5, 5.1 and 5.2),
from time to time on any Business Day occurring concurrently with (or after)
the Closing Date but prior to the Revolving Loan Commitment Termination Date,
the Issuer will (a) issue one or more standby or commercial letters of credit
(each referred to as a "Letter of Credit") for the account of the Borrower in
the Stated Amount requested by the Borrower on such day, or (b) extend the
Stated Expiry Date of an existing standby or commercial Letter of Credit
previously issued hereunder.
SECTION 2.1.4. Lenders Not Permitted or Required to Make the Loans. No
Lender shall be permitted or required to, and the Borrower shall not request
any Lender to, make
(a) any Term Loan if, after giving effect thereto, the
aggregate original principal amount of all the Term Loans (i) of all
Lenders would exceed the Term Loan Commitment Amount, or (ii) of such
Lender would exceed such Lender's Percentage of the Term Loan
Commitment Amount; or
(b) any Revolving Loan if, after giving effect thereto, the
aggregate outstanding principal amount of all the Revolving Loans (i)
of all Lenders, together with all Letter of Credit Outstandings and
the aggregate outstanding principal amount of all Swing Line Loans,
would exceed the Revolving Loan Commitment Amount, or (ii) of such
Lender (other than the Swing Line Lender), together with its
Percentage of all Letter of Credit Outstandings, would exceed such
Lender's Percentage of the Revolving Loan Commitment Amount; or
(c) any Swing Line Loan if, after giving effect thereto, the
aggregate outstanding principal amount of all Swing Line Loans (i)
would exceed the Swing Line Loan Commitment Amount, or (ii) together
with all Letter of Credit Outstandings and the aggregate outstanding
principal amount of all Revolving Loans, would exceed the Revolving
Loan Commitment Amount.
SECTION 2.1.5. Issuer Not Permitted or Required to Issue Letters of
Credit. No Issuer shall be permitted or required to issue any Letter of Credit
if, after giving effect thereto, (a) the aggregate amount of all Letter of
Credit Outstandings would exceed the Letter of Credit
Commitment Amount or (b) the sum of the aggregate amount of all Letter of
Credit Outstandings plus the aggregate principal amount of all Revolving Loans
and all Swing Line Loans then outstanding would exceed the Revolving Loan
Commitment Amount.
SECTION 2.2. Reduction of the Commitment Amounts. The Commitment
Amounts are subject to reductions from time to time pursuant to this Section
2.2.
SECTION 2.2.1. Optional. The Borrower may, from time to time on any
Business Day occurring after the time of the initial Credit Extension
hereunder, voluntarily reduce the
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Revolving Loan Commitment Amount; provided, however, that all such reductions
shall require at least three Business Days' prior notice to the Administrative
Agent and be permanent, and any partial reduction of any Commitment Amount
shall be in an aggregate amount of $5,000,000 or any larger integral multiple
of $1,000,000. Any such reduction of the Revolving Loan Commitment Amount which
reduces the Revolving Loan Commitment Amount below the Letter of Credit
Commitment Amount or the Swing Line Loan Commitment Amount shall result in an
automatic and corresponding reduction of the Letter of Credit Commitment Amount
or the Swing Line Loan Commitment Amount, as the case may be, to an aggregate
amount not in excess of the Revolving Loan Commitment Amount, as so reduced,
without any further action on the part of the Issuer or the Swing Line Lender.
SECTION 2.2.2. Mandatory. The Revolving Loan Commitment Amount shall,
without any further action, automatically and permanently be reduced
(a) on the Revolving Loan Commitment Termination Date so that
the Revolving Loan Commitment Amount equals $0; and
(b) following the prepayment in full of the Term Loans, on
the date the Term Loans would otherwise have been required to be
prepaid pursuant to clause (b), (c), (d), (e) or (f) of Section 3.1.1,
in an amount equal to the amount by which the Term Loans would
otherwise have been required to be prepaid if any Term Loans had been
outstanding. Any such reduction of the Revolving Loan Commitment
Amount which reduces the Revolving Loan Commitment Amount below the
Letter of Credit Commitment Amount or the Swing Line Loan Commitment
Amount shall result in an automatic and corresponding permanent
reduction of the Letter of Credit Commitment Amount or the Swing Line
Loan Commitment Amount, as the case may be, to an aggregate amount not
in excess of the Revolving Loan Commitment Amount, as so reduced,
without any further action on the part of the Issuer or the Swing Line
Lender.
SECTION 2.3. Borrowing Procedures and Funding Maintenance. Loans
(other than Swing Line Loans) shall be made by the Lenders in accordance with
Section 2.3.1, and Swing Line Loans shall be made by the Swing Line Lender in
accordance with Section 2.3.2.
SECTION 2.3.1. Term Loans and Revolving Loans. By delivering a
Borrowing Request to the Administrative Agent on or before 12:00 noon, New York
City time, on a Business Day, the Borrower may from time to time irrevocably
request, on not less than one Business Day's notice (in the case of Base Rate
Loans) or three Business Days' notice (in the case of LIBO Rate Loans) nor more
than five Business Days' notice (in the case of any Loans), that a Borrowing be
made, in the case of LIBO Rate Loans, in an aggregate amount of $1,000,000 or
any larger integral multiple of $500,000, and in the case of Base Rate Loans,
in an aggregate amount of $500,000 or any larger integral multiple of $100,000,
or, in either case, in the unused amount of the applicable Commitment. No
Borrowing Request shall be required, and the minimum aggregate amounts
specified under this Section 2.3.1 shall not apply, in the case of Revolving
Loans made under clause (b) of Section 2.3.2 to refund Refunded Swing Line
Loans or deemed made under Section 2.6.2 in respect of unreimbursed
Disbursements. On the terms and subject
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to the conditions of this Agreement, each Borrowing shall be comprised of the
type of Loans, and shall be made on the Business Day, specified in such
Borrowing Request. On or before 11:00 a.m., New York City time, on such
Business Day each Lender shall deposit with the Administrative Agent same day
funds in an amount equal to such Lender's Percentage of the requested
Borrowing. Such deposit will be made to an account which the Administrative
Agent shall specify from time to time by notice to the Lenders. To the extent
funds are received from the Lenders, the Administrative Agent shall make such
funds available to the Borrower by wire transfer to the accounts the Borrower
shall have specified in its Borrowing Request. No Lender's obligation to make
any Loan shall be affected by any other Lender's failure to make any Loan.
SECTION 2.3.2. Swing Line Loans. (a) By telephonic notice, promptly
followed (within one Business Day) by the delivery of a confirming Borrowing
Request, to the Swing Line Lender and the Administrative Agent on or before
12:00 noon, New York City time, on the Business Day the proposed Swing Line
Loan is to be made, the Borrower may from time to time irrevocably request that
a Swing Line Loan be made by the Swing Line Lender in a minimum principal
amount of $100,000 or any larger integral multiple of $50,000. All Swing Line
Loans shall be made as Base Rate Loans and shall not be entitled to be
converted into LIBO Rate Loans. The proceeds of each Swing Line Loan shall be
made available by the Swing Line Lender, by 5:00 p.m., New York City time, on
the Business Day telephonic notice is received by it as provided in this clause
(a), to the Borrower by wire transfer to the account the Borrower shall have
specified in its notice therefor.
(b) If (i) any Swing Line Loan (A) shall be outstanding for more than
four Business Days or (B) is or will be outstanding on a date when the Borrower
requests that a Revolving Loan be made or (ii) any Default (other than a
Default of the nature set forth in Section 8.1.9) shall occur and be
continuing, each Lender with a Revolving Loan Commitment (other than the Swing
Line Lender) irrevocably agrees that it will, at the request of the Swing Line
Lender and upon notice from the Administrative Agent, make a Revolving Loan
(which shall initially be funded as a Base Rate Loan) in an amount equal to
such Lender's Percentage of the aggregate principal amount of all such Swing
Line Loans then outstanding (such outstanding Swing Line Loans hereinafter
referred to as the "Refunded Swing Line Loans"); provided, that the Swing Line
Lender shall not request, and no Lender with a Revolving Loan Commitment shall
make, any Refunded Swing Line Loan if, after giving effect to the making of
such Refunded Swing Line Loan, the sum of all Swing Line Loans and Revolving
Loans made by such Lender, plus such Lender's Percentage of the aggregate
amount of all Letter of Credit Outstandings, would exceed such Lender's
Percentage of the then existing Revolving Loan Commitment Amount. On or before
11:00 a.m. (New York City time) on the first Business Day following receipt by
each Lender of a request to make Revolving Loans as provided in the preceding
sentence, each such Lender with a Revolving Loan Commitment shall deposit in an
account specified by the Swing Line Lender the amount so requested in same day
funds and such funds shall be applied by the Swing Line Lender to repay the
Refunded Swing Line Loans. At the time the aforementioned Lenders make the
above referenced Revolving Loans, the Swing Line Lender shall be deemed to have
made, in consideration of the making of the Refunded Swing Line Loans, a
Revolving Loan in an amount equal to the Swing Line Lender's Percentage of the
aggregate principal amount of
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the Refunded Swing Line Loans. Upon the making (or deemed making, in the case
of the Swing Line Lender) of any Revolving Loans pursuant to this clause (b),
the amount so funded shall become outstanding under such Lender's Revolving
Note and shall no longer be owed under the Swing Line Note. All interest
payable with respect to any Revolving Loans made (or deemed made, in the case
of the Swing Line Lender) pursuant to this clause (b) shall be appropriately
adjusted to reflect the period of time during which the Swing Line Lender had
outstanding Swing Line Loans in respect of which such Revolving Loans were
made.
(c) If, at any time prior to the making of Revolving Loans to replace
any outstanding Swing Line Loans pursuant to clause (b) above, any Default of
the nature of the nature set forth in Section 8.1.9 shall have occurred, each
Lender with a Revolving Loan Commitment (other than the Swing Line Lender)
irrevocably agrees that it will, at the request of the Swing Line Lender and
upon notice from the Administrative Agent, purchase an undivided participation
interest in all such Swing Line Loans in an amount equal to its Percentage of
the aggregate outstanding amount of such Swing Line Loans and transfer
immediately to an account identified by the Swing Line Lender, in immediately
available funds, the amount of its participation. The Swing Line Lender will
deliver to each such Lender, promptly following receipt of such funds, a
participation certificate, dated the date of receipt of such funds and in the
amount of such Lender's participation if requested to do so by such Lender.
(d) The Borrower expressly agrees that, in respect of each Lender's
funded participation interest in any Swing Line Loan, such Lender shall be
deemed to be in privity of contract with the Borrower and have the same rights
and remedies against the Borrower under the Loan Documents as if such funded
participation interest in such Swing Line Loan were a Revolving Loan.
(e) Each Lender's obligation (in the case of Lenders with a Revolving
Loan Commitment) to make Revolving Loans or purchase participation interests in
Swing Line Loans, as contemplated by clause (b) or (c) above, shall be absolute
and unconditional and without recourse to the Swing Line Lender and shall not
be affected by any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Revolving Lender may have against
the Swing Line Lender, the Borrower or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of a Default, an Event of
Default or a Material Adverse Effect; (iii) the acceleration or maturity of any
Loans or the termination of any Commitment after the making of any Swing Line
Loan; (iv) any breach of this Agreement or any other Loan Document by the
Borrower, any other Obligor or any Lender; or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Administrative Agent on or before 12:00
noon, New York City time, on a Business Day, the Borrower may from time to time
irrevocably elect, on not less than one Business Day's notice (in the case of a
conversion of LIBO Rate Loans to Base Rate Loans) or three Business Days'
notice (in the case of a continuation of LIBO Rate Loans or a conversion of
Base Rate Loans into LIBO Rate Loans) nor more than five Business Days' notice
(in the case of any Loans) that all, or any portion (a) in a minimum amount of
$1,000,000
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or any larger integral multiple of $500,000, be, in the case of Base Rate
Loans, converted into LIBO Rate Loans or, in the case of LIBO Rate Loans,
continued as LIBO Rate Loans or (b) in a minimum amount of $500,000 or any
larger integral multiple of $100,000, be, in the case of LIBO Rate Loans,
converted into Base Rate Loans (in the absence of delivery of a
Continuation/Conversion Notice with respect to any LIBO Rate Loan at least
three Business Days before the last day of the then current Interest Period
with respect thereto, such LIBO Rate Loan shall, on such last day,
automatically convert to a Base Rate Loan); provided, however, that (x) each
such conversion or continuation shall be pro rated among the applicable
outstanding Loans of the relevant Lenders, and (y) no portion of the
outstanding principal amount of any Loans may be continued as, or be converted
into, LIBO Rate Loans when any Default or Event of Default has occurred and is
continuing.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing
one of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan, so long as
such action does not result in increased costs to the Borrower; provided,
however, that such LIBO Rate Loan shall nonetheless be deemed to have been made
and to be held by such Lender, and the obligation of the Borrower to repay such
LIBO Rate Loan shall nevertheless be to such Lender for the account of such
foreign branch, Affiliate or international banking facility; provided further,
however, that, except for purposes of determining whether any such increased
costs are payable by the Borrower, such Lender shall cause such foreign branch,
Affiliate or international banking facility to comply with the applicable
provisions of clause (b) of Section 4.6 with respect to such LIBO Rate Loan. In
addition, the Borrower hereby consents and agrees that, for purposes of any
determination to be made for purposes of Section 4.1, 4.2, 4.3 or 4.4, it shall
be conclusively assumed that each Lender elected to fund all LIBO Rate Loans by
purchasing Dollar deposits in its LIBOR Office's interbank Eurodollar market.
SECTION 2.6. Issuance Procedures. By delivering to the Administrative
Agent an Issuance Request on or before 12:00 noon, New York City time, on a
Business Day, the Borrower may, from time to time irrevocably request, on not
less than three nor more than ten Business Days' notice (or such shorter or
longer notice as may be acceptable to the Issuer), in the case of an initial
issuance of a Letter of Credit, and not less than three nor more than ten
Business Days' notice (unless a shorter or longer notice period is acceptable
to the Issuer) prior to the then existing Stated Expiry Date of a Letter of
Credit, in the case of a request for the extension of the Stated Expiry Date of
a Letter of Credit, that the Issuer issue, or extend the Stated Expiry Date of,
as the case may be, an irrevocable Letter of Credit on behalf of the Borrower
(whether the account party on such Letter of Credit is the Borrower or a
Subsidiary of the Borrower) in such form as may be requested by the Borrower
and approved by the Issuer, for the purposes described in Section 7.1.9;
provided, however, that no extension of the Stated Expiry Date of an
outstanding Letter of Credit may provide for a Stated Expiry Date subsequent to
the earlier of (i) the Revolving Loan Commitment Termination Date and (ii) one
year from the date of such extension. Notwithstanding anything to the contrary
contained herein or in any separate application for any Letter of Credit, the
Borrower hereby acknowledges and agrees that it shall be obligated to reimburse
the Issuer upon each Disbursement paid under a Letter of
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Credit, and it shall be deemed to be the obligor for purposes of each such
Letter of Credit issued hereunder (whether the account party on such Letter of
Credit is the Borrower or a Subsidiary of the Borrower). Upon receipt of an
Issuance Request, the Administrative Agent shall promptly notify the Issuer and
each Lender thereof. Each Letter of Credit shall by its terms be stated to
expire on a date (its "Stated Expiry Date") no later than the earlier to occur
of (i) the Revolving Loan Commitment Termination Date or (ii) one year from the
date of its issuance. The Issuer will make available to the beneficiary thereof
the original of each Letter of Credit which it issues hereunder.
SECTION 2.6.1. Other Lenders' Participation. Upon the issuance of each
Letter of Credit issued by the Issuer pursuant hereto, and without further
action, each Lender (other than the Issuer) that has a Revolving Loan
Commitment shall be deemed to have irrevocably purchased from the Issuer, to
the extent of its Percentage in respect of Revolving Loans, and the Issuer
shall be deemed to have irrevocably granted and sold to such Lender a
participation interest in such Letter of Credit (including the Contingent
Liability and any Reimbursement Obligation and all rights with respect
thereto), and such Lender shall, to the extent of its Percentage in respect of
Revolving Loans, be responsible for reimbursing promptly (and in any event
within one Business Day) the Issuer for Reimbursement Obligations which have
not been reimbursed by the Borrower in accordance with Section 2.6.3. In
addition, such Lender shall, to the extent of its Percentage in respect of
Revolving Loans, be entitled to receive a ratable portion of the Letter of
Credit fees payable pursuant to Section 3.3.3 with respect to each Letter of
Credit and of interest payable pursuant to Section 3.2 with respect to any
Reimbursement Obligation. To the extent that any Lender has reimbursed the
Issuer for a Disbursement as required by this Section, such Lender shall be
entitled to receive its ratable portion of any amounts subsequently received
(from the Borrower or otherwise) in respect of such Disbursement.
SECTION 2.6.2. Disbursements; Conversion to Revolving Loans. The
Issuer will notify the Borrower and the Administrative Agent promptly of the
presentment for payment of any drawing under any Letter of Credit issued by the
Issuer, together with notice of the date (the "Disbursement Date") such payment
shall be made (each such payment, a "Disbursement"). Subject to the terms and
provisions of such Letter of Credit and this Agreement, the Issuer shall make
such payment to the beneficiary (or its designee) of such Letter of Credit.
Prior to 12:00 noon, New York City time, on the first Business Day following
the Disbursement Date (the "Disbursement Due Date"), the Borrower will
reimburse the Administrative Agent, for the account of the Issuer, for all
amounts which the Issuer has disbursed under such Letter of Credit,
together with interest thereon at the rate per annum otherwise applicable to
Revolving Loans (made as Base Rate Loans) from and including the Disbursement
Date to but excluding the Disbursement Due Date and, thereafter (unless such
Disbursement is converted into a Revolving Loan made as a Base Rate Loan on the
Disbursement Due Date), at a rate per annum equal to the rate per annum then in
effect with respect to overdue Revolving Loans (made as Base Rate Loans)
pursuant to Section 3.2.2 for the period from the Disbursement Due Date through
the date of such reimbursement; provided, however, that, if no Default shall
have then occurred and be continuing, unless the Borrower has notified the
Administrative Agent no later than one Business Day prior to the Disbursement
Due Date that it will reimburse the Issuer for the applicable Disbursement,
then the amount of the Disbursement shall be deemed to be a Borrowing of
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Revolving Loans constituting Base Rate Loans and following the giving of notice
thereof by the Administrative Agent to the Lenders, each Lender with a
Revolving Loan Commitment (other than the Issuer) will deliver to the Issuer on
the Disbursement Due Date immediately available funds in an amount equal to
such Lender's Percentage of such Borrowing. Each conversion of Disbursement
amounts into Revolving Loans shall constitute a representation and warranty by
the Borrower that on the date of the making of such Revolving Loans all of the
statements set forth in Section 5.2.1 are true and correct.
SECTION 2.6.3. Reimbursement. The obligation (a "Reimbursement
Obligation") of the Borrower under Section 2.6.2 to reimburse the Issuer with
respect to each Disbursement (including interest thereon) not converted into a
Revolving Loan made as a Base Rate Loan pursuant to Section 2.6.2, and, upon
the failure of the Borrower to reimburse the Issuer and the giving of notice
thereof by the Administrative Agent to the Lenders, each Lender's (to the
extent it has a Revolving Loan Commitment) obligation under Section 2.6.1 to
reimburse the Issuer or fund its Percentage of any Disbursement converted into
a Revolving Loan made as a Base Rate Loan, shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which the Borrower or such Lender, as the case may be, may
have or have had against the Issuer or any such Lender, including any defense
based upon the failure of any Disbursement to conform to the terms of the
applicable Letter of Credit (if, in the Issuer's good faith opinion, such
Disbursement is determined to be appropriate) or any non-application or
misapplication by the beneficiary of the proceeds of such Letter of Credit;
provided, however, that after paying in full its Reimbursement Obligation
hereunder, nothing herein shall adversely affect the right of the Borrower or
such Lender, as the case may be, to commence any proceeding against the Issuer
for any wrongful Disbursement made by the Issuer under a Letter of Credit as a
result of acts or omissions constituting gross negligence or willful misconduct
on the part of the Issuer.
SECTION 2.6.4. Deemed Disbursements. Upon the occurrence and during
the continuation of any Event of Default of the type described in clauses (a)
through (d) of Section 8.1.9 or, with notice from the Administrative Agent
acting at the direction of the Required Lenders, upon the occurrence and during
the continuation of any other Event of Default,
(a) an amount equal to that portion of all Letter of Credit
Outstandings attributable to the then aggregate amount which is
undrawn and available under all Letters of Credit issued and
outstanding shall, without demand upon or notice to the Borrower or
any other Person, be deemed to have been paid or disbursed by the
Issuer under such Letters of Credit (notwithstanding that such amount
may not in fact have been so paid or disbursed); and
(b) upon notification by the Administrative Agent to the
Borrower of its obligations under this Section, the Borrower shall be
immediately obligated to reimburse the Issuer for the amount deemed to
have been so paid or disbursed by the Issuer.
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Any amounts so payable by the Borrower pursuant to this Section shall be
deposited in cash with the Administrative Agent and held as collateral security
for the Obligations in connection with the Letters of Credit issued by the
Issuer. At such time as the Events of Default giving rise to the deemed
disbursements hereunder shall have been cured or waived, the Administrative
Agent shall return to the Borrower all amounts then on deposit with the
Administrative Agent pursuant to this Section, together with accrued interest
at the Federal Funds Rate, which have not been applied to the satisfaction of
such Obligations.
SECTION 2.6.5. Nature of Reimbursement Obligations. The Borrower and,
to the extent set forth in Section 2.6.1, each Lender with a Revolving Loan
Commitment, shall assume all risks of the acts, omissions or misuse of any
Letter of Credit by the beneficiary thereof. The Issuer (except to the extent
of its own gross negligence or willful misconduct) shall not be responsible for
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of
any Letter of Credit or any document submitted by any party in connection with
the application for and issuance of a Letter of Credit, even if it should in
fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged, (ii) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or the proceeds thereof in whole or in part, which may prove to be
invalid or ineffective for any reason, (iii) failure of the beneficiary to
comply fully with conditions required in order to demand payment under a Letter
of Credit, (iv) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise, or (v)
any loss or delay in the transmission or otherwise of any document or draft
required in order to make a Disbursement under a Letter of Credit. None of the
foregoing shall affect, impair or prevent the vesting of any of the rights or
powers granted to the Issuer or any Lender with a Revolving Loan Commitment
hereunder. In furtherance and extension and not in limitation or derogation of
any of the foregoing, any action taken or omitted to be taken by the Issuer in
good faith (and not constituting gross negligence or willful misconduct) shall
be binding upon the Borrower, each Obligor and each such Lender, and shall not
put the Issuer under any resulting liability to the Borrower, any Obligor or
any such Lender, as the case may be.
SECTION 2.6.6. Indemnity. In addition to amounts payable as elsewhere
provided herein, the Borrower hereby agrees to protect, indemnify, pay and save
the Issuer harmless from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including reasonable attorneys'
fees and allocated costs of internal counsel) which the Issuer may incur or be
subject to as a consequence, direct or indirect, of (a) the issuance of the
Letters of Credit, other than as a result of the gross negligence or wilful
misconduct of the Issuer as determined by a court of competent jurisdiction, or
(b) the failure of the Issuer to honor a drawing under any Letter of Credit as
a result of any act or omission, whether rightful or wrongful, of any present
or future de jure or de facto government or governmental authority.
SECTION 2.6.7. Borrower's Guaranty of Reimbursement Obligations under
Letters of Credit Issued for the Account of its Subsidiaries. The Borrower
agrees as follows in respect of the reimbursement obligations under Letters of
Credit issued for the account of its Subsidiaries:
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(a) The Borrower hereby absolutely, unconditionally and irrevocably
(i) guarantees the full and punctual payment when due,
whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise, of all such reimbursement
obligations now or hereafter existing, of each of its Subsidiaries
(the "Account Parties") that is an account party to a Letter of Credit
which arise out of, or are incurred in connection with, such Letters
of Credit, whether for principal, interest, fees, expenses or
otherwise (including all such amounts which would become due but for
the operation of the automatic stay under Section 362(a) of the United
States Bankruptcy Code, 11 U.S.C. ss.362(a), and the operation of
Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11
U.S.C. ss.502(b) and ss.506(b)), and
(ii) indemnifies and holds harmless each Secured Party and
each holder of a Note for any and all costs and expenses (including
reasonable attorney's fees and expenses) incurred by such Secured
Party or such holder, as the case may be, in enforcing any rights
under the guaranty set forth in this Section 2.6.7.
The guaranty set forth in this Section 2.6.7 constitutes a guaranty of payment
when due and not of collection, and the Borrower specifically agrees that it
shall not be necessary or required that any Secured Party or any holder of any
Note exercise any right, assert any claim or demand or enforce any remedy
whatsoever against any Account Party or any other Obligor (or any other Person)
before or as a condition to the obligations of the Borrower under the guaranty
set forth in this Section 2.6.7 (such obligations hereinafter referred to as
the "Guaranteed Obligations").
(b) The Borrower agrees that upon the occurrence of an Event of
Default of the nature set forth in clauses (a) through (d) of Section 8.1.9, at
a time when any of the Guaranteed Obligations of any Account Party may not then
be due and payable, then the Borrower agrees that it will pay to the
Administrative Agent for the account of the Secured Parties forthwith the full
amount which would be payable under the guaranty set forth in this Section
2.6.7 by the Borrower if all such Guaranteed Obligations were then due and
payable.
(c) The guaranty set forth in this Section 2.6.7 shall in all respects
be a continuing, absolute, unconditional and irrevocable guaranty of payment,
and shall remain in full force and effect until all Guaranteed Obligations of
the Account Parties have been paid in full in cash, all Obligations of the
Borrower and each other Obligor hereunder have been paid in full in cash, all
Letters of Credit have been terminated or expired, all Rate Protection
Agreements have been terminated or expired and all Commitments shall have
terminated. The Borrower guarantees that the Guaranteed Obligations of the
Account Parties will be paid strictly in accordance with the terms of this
Agreement and each other Loan Document under which they arise, regardless of
any law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of any Secured Party or any holder of
any Note with respect thereto. The liability of the Borrower under the guaranty
set forth in this Section 2.6.7 shall be absolute, unconditional and
irrevocable irrespective of:
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(i) any lack of validity, legality or enforceability of this
Agreement, any Note or any other Loan Document;
(ii) the failure of any Secured Party or any holder of any
Note
(A) to assert any claim or demand or to enforce any
right or remedy against any Account Party, any other Obligor
or any other Person (including any other guarantor (including
the Borrower)) under the provisions of this Agreement, any
Note, any other Loan Document or otherwise, or
(B) to exercise any right or remedy against any
other guarantor (including the Borrower) of, or collateral
securing, any Guaranteed Obligations of any Account Party;
(iii) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Guaranteed Obligations of
any Account Party, or any other extension, compromise or renewal of
any Guaranteed Obligation of any Account Party;
(iv) any reduction, limitation, impairment or termination of
any Guaranteed Obligations of any Account Party for any reason,
including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to (and the Borrower hereby
waives any right to or claim of) any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity,
illegality, nongenuineness, irregularity, compromise, unenforceability
of, or any other event or occurrence affecting, any Guaranteed
Obligations of any Account Party or otherwise;
(v) any amendment to, rescission, waiver, or other
modification of, or any consent to departure from, any of the terms of
this Agreement, any Note or any other Loan Document;
(vi) any addition, exchange, release, surrender or
non-perfection of any collateral, or any amendment to or waiver or
release or addition of, or consent to departure from, any other
guaranty, held by any Secured Party or any holder of any Note securing
any of the Guaranteed Obligations of any Account Party; or
(vii) any other circumstance which might otherwise constitute
a defense available to, or a legal or equitable discharge of, any
Account Party any surety or any guarantor.
(d) The Borrower agrees that the guaranty set forth in this Section
2.6.7 shall continue to be effective or be reinstated, as the case may be, if
at any time any payment (in whole or in part) of any of the Guaranteed
Obligations is rescinded or must otherwise be restored by any Secured Party or
any holder of any Note, upon the insolvency, bankruptcy or reorganization of
any Account Party or otherwise, all as though such payment had not been made.
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(e) The Borrower hereby waives promptness, diligence, notice of
acceptance and any other notice with respect to any of the Guaranteed
Obligations of any Account Party or any other Obligor and the guaranty set
forth in this Section 2.6.7 and any requirement that the Administrative Agent,
any other Secured Party or any holder of any Note protect, secure, perfect or
insure any security interest or Lien, or any property subject thereto, or
exhaust any right or take any action against any Account Party, any other
Obligor or any other Person (including any other guarantor) or entity or any
collateral securing the Guaranteed Obligations of any Account Party.
(f) The Borrower agrees that it will not exercise any rights which it
may acquire by way of rights of subrogation under the guaranty set forth in
this Section 2.6.7, by any payment made under the guaranty set forth in this
Section 2.6.7 or otherwise, until the prior payment in full in cash of all
Guaranteed Obligations of each Account Party, the prior payment in full in cash
of all Obligations of the Borrower, the termination or expiration of all
Letters of Credit, the termination or expiration of all Rate Protection
Agreements and the termination of all Commitments. Any amount paid to the
Borrower on account of any such subrogation rights prior to the payment in full
in cash of all Guaranteed Obligations of each Account Party shall be held in
trust for the benefit of the Secured Parties and each holder of a Note and
shall immediately be paid to the Administrative Agent for the benefit of the
Secured Parties and each holder of a Note and credited and applied against the
Guaranteed Obligations of each Account Party, whether matured or unmatured, in
accordance with the terms of this Agreement; provided, however, that if
(i) the Borrower has made payment to the Secured Parties and
each holder of a Note of all or any part of the Guaranteed Obligations
of any Account Party, and
(ii) all Guaranteed Obligations of each Account Party have
been paid in full in cash, all Obligations of the Borrower have been
paid in full in cash, all Letters of Credit have been terminated or
expired and all Commitments have been permanently terminated,
each Secured Party and each holder of a Note agrees that, at the Borrower's
request, the Administrative Agent, on behalf of the Secured Parties and the
holders of the Notes, will execute and deliver to the Borrower appropriate
documents (without recourse and without representation or warranty) necessary
to evidence the transfer by subrogation to the Borrower of an interest in the
Guaranteed Obligations of each Account Party resulting from such payment by the
Borrower. In furtherance of the foregoing, for so long as any Obligations
(including Guaranteed Obligations) or Commitments remain outstanding, the
Borrower shall refrain from taking any action or commencing any proceeding
against any Account Party(or its successors or assigns, whether in connection
with a bankruptcy proceeding or otherwise) to recover any amounts in the
respect of payments made under the guaranty set forth in this Section 2.6.7 to
any Secured Party or any holder of a Note.
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(g) The guaranty set forth in this Section 2.6.7 shall:
(h) be binding upon the Borrower, and its successors,
transferees and assigns; and
(i) inure to the benefit of and be enforceable by the
Administrative Agent and each other Secured Party.
Without limiting the generality of the foregoing clause (b), any Lender may
assign or otherwise transfer (in whole or in part) any Note or Credit Extension
held by it to any other Person or entity, and such other Person or entity shall
thereupon become vested with all rights and benefits in respect thereof granted
to such Lender under any Loan Document (including the guaranty set forth in
this Section 2.6.7) or otherwise, subject, however, to any contrary provisions
in such assignment or transfer, and to the provisions of Section 11.11 and
Article X.
SECTION 2.7. Register; Notes.
(a) Each Lender may maintain in accordance with its usual
practice an account or accounts evidencing the Indebtedness of the
Borrower to such Lender resulting from each Loan made by such Lender,
including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder. In the case of a Lender that
does not request, pursuant to clause (b)(ii) below, execution and
delivery of a Note evidencing the Loans made by such Lender to the
Borrower, such account or accounts shall, to the extent not
inconsistent with the notations made by the Administrative Agent in
the Register, be conclusive and binding on the Borrower absent
manifest error; provided, however, that the failure of any Lender to
maintain such account or accounts shall not limit or otherwise affect
any Obligations of the Borrower or any other Obligor.
(b)(i) The Borrower hereby designates the Administrative
Agent to serve as the Borrower's agent, solely for the purpose of this
clause (b), to maintain a register (the "Register") on which the
Administrative Agent will record each Lender's Commitment, the Loans
made by each Lender and each repayment in respect of the principal
amount of the Loans of each Lender and annexed to which the
Administrative Agent shall retain a copy of each Lender Assignment
Agreement delivered to the Administrative Agent pursuant to Section
11.11.1. Failure to make any recordation, or any error in such
recordation, shall not affect the Borrower's obligation in respect of
such Loans. The entries in the Register shall be conclusive, in the
absence of manifest error, and the Borrower, the Administrative Agent
and the Lenders shall treat each Person in whose name a Loan (and as
provided in clause (ii) the Note evidencing such Loan, if any) is
registered as the owner thereof for all purposes of this Agreement,
notwithstanding notice or any provision herein to the contrary. A
Lender's Commitment and the Loans made pursuant thereto may be
assigned or otherwise transferred in whole or in part only by
registration of such assignment or transfer in the Register. Any
assignment or transfer of a Lender's Commitment or the Loans made
pursuant thereto shall be registered in the Register only upon
delivery to the Administrative Agent of a Lender Assignment
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Agreement duly executed by the assignor thereof and the compliance by
the parties thereto with the other requirements of Section 11.11.1. No
assignment or transfer of a Lender's Commitment or the Loans made
pursuant thereto shall be effective unless such assignment or transfer
shall have been recorded in the Register by the Administrative Agent
as provided in this Section.
(ii) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and
deliver to such Lender, as applicable, a Revolving Note, a Term Note
(or Registered Note) and/or a Swing Line Note evidencing the Loans
made by such Lender. The Borrower hereby irrevocably authorizes each
Lender to make (or cause to be made) appropriate notations on the grid
attached to such Lender's Notes (or on any continuation of such grid),
which notations, if made, shall evidence, inter alia, the date of, the
outstanding principal amount of, and the interest rate and Interest
Period applicable to the Loans evidenced thereby. Such notations
shall, to the extent not inconsistent with the notations made by the
Administrative Agent in the Register, be conclusive and binding on the
Borrower absent manifest error; provided, however, that the failure of
any Lender to make any such notations shall not limit or otherwise
affect any Obligations of the Borrower or any other Obligor. The Loans
evidenced by any Registered Note and interest thereon shall at all
times (including after assignment pursuant to Section 11.11.1) be
payable to the order of the payee named therein and its registered
assigns. A Registered Note and the obligation evidenced thereby may be
assigned or otherwise transferred in whole or in part only by
registration of such assignment or transfer of such Registered Note
and the obligation evidenced thereby in the Register (and each
Registered Note shall expressly so provide). Any assignment or
transfer of all or part of an obligation evidenced by a Registered
Note shall be registered in the Register only upon surrender for
registration of assignment or transfer of the Registered Note
evidencing such obligation, accompanied by a Lender Assignment
Agreement duly executed by the assignor thereof and the compliance by
the parties thereto with the other requirements of Section 11.11.1,
and thereupon, if requested by the assignee, one or more new Notes
shall be issued to the designated assignee and the old Registered Note
shall be returned by the Administrative Agent to the Borrower marked
"exchanged". No assignment of a Registered Note and the obligation
evidenced thereby shall be effective unless it shall have been
recorded in the Register by the Administrative Agent as provided in
this Section.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application.
SECTION 3.1.1. Repayments and Prepayments. The Borrower shall repay in
full the unpaid principal amount of each Loan upon the Stated Maturity Date
therefor. Prior thereto, the Borrower
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(a) may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the outstanding
principal amount of any
(i) Loans (other than Swing Line Loans); provided,
however, that
(A) any such prepayment of the Term Loans shall be
made pro rata among the Term Loans of the same type
and, if applicable, having the same Interest Period of
all Lenders that have made such Term Loans, and any
such prepayment of Revolving Loans shall be made pro
rata among the Revolving Loans of the same type and, if
applicable, having the same Interest Period of all
Lenders that have made such Revolving Loans;
(B) the Borrower shall comply with Section 4.4 in
the event that any LIBO Rate Loan is prepaid on any day
other than the last day of the Interest Period for such
Loan;
(C) all such voluntary prepayments shall require
at least one Business Day's notice in the case of Base
Rate Loans, three Business Days' notice in the case of
LIBO Rate Loans, but no more than five Business Days'
notice in the case of any Loans, in each case in
writing to the Administrative Agent; and
(D) all such voluntary partial prepayments shall
be, in the case of LIBO Rate Loans, in an aggregate
amount of $1,000,000 or any larger integral multiple of
$500,000, and, in the case of Base Rate Loans, in an
aggregate amount of $500,000 or any larger integral
multiple of $100,000, or, in either case, in the
aggregate principal amount of all Loans of the
applicable Tranche and type then outstanding; or
(ii) Swing Line Loans; provided, however, that
(A) all such voluntary prepayments shall require
prior telephonic notice to the Swing Line Lender on or
before 12:00 noon, New York City time, on the day of
such prepayment (such notice to be confirmed in writing
by the Borrower within 24 hours thereafter); and
(B) all such voluntary partial prepayments shall
be in an aggregate amount of $100,000 and an integral
multiple of $50,000 or in the aggregate principal
amount of all Swing Line Loans then outstanding;
(b) shall, no later than five Business Days following the
delivery by the Borrower of its annual audited financial reports
required pursuant to clause (c) of Section 7.1.1 (beginning with the
financial reports delivered in respect of the 1998 Fiscal Year),
deliver to the Administrative Agent a calculation of the Excess Cash
Flow for the Fiscal Year last ended and, no later than five Business
Days following the delivery of such
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calculation, make a mandatory prepayment of the Term Loans in
an amount equal to 75% of the Excess Cash Flow (if any) for such
Fiscal Year, to be applied as set forth in Section 3.1.2;
(c) shall, not later than one Business Day following the
receipt of any Net Debt Proceeds by the Borrower, any Parent Guarantor
or any of their respective Subsidiaries, deliver to the Administrative
Agent a calculation of the amount of such Net Debt Proceeds and make a
mandatory prepayment of the Term Loans in an amount equal to 100% of
such Net Debt Proceeds to be applied as set forth in Section 3.1.2;
(d) shall, concurrently with the receipt of any Net Equity
Proceeds by the Borrower, any Parent Guarantor or any of their
respective Subsidiaries, deliver to the Administrative Agent a
calculation of the amount of such Net Equity Proceeds, and no later
than five Business Days following the delivery of such calculation,
make a mandatory prepayment of the Term Loans in an amount equal to
50% of such Net Equity Proceeds to be applied as set forth in Section
3.1.2;
(e) shall, following the receipt by the Borrower, any Parent
Guarantor or any of their respective Subsidiaries of any Casualty
Proceeds in excess of $500,000 (individually or in the aggregate (when
taken together with Net Disposition Proceeds) over the course of a
Fiscal Year), deliver to the Administrative Agent a calculation of the
amount of such Casualty Proceeds and make a mandatory prepayment of
the Term Loans in an amount equal to 100% of such Casualty Proceeds
within 60 days of the receipt thereof to be applied as set forth in
Section 3.1.2; provided, however, that no mandatory prepayment on
account of Casualty Proceeds shall be required under this clause if
the Borrower informs the Agents in writing no later than 60 days
following the occurrence of the Casualty Event resulting in such
Casualty Proceeds of its, such Parent Guarantor's or such Subsidiary's
good faith intention to apply such Casualty Proceeds to the rebuilding
or replacement of the damaged, destroyed or condemned assets or
property and the Borrower, such Parent Guarantor or such Subsidiary in
fact uses such Casualty Proceeds to rebuild or replace such assets or
property within 365 days following the receipt of such Casualty
Proceeds, with the amount of such Casualty Proceeds unused after such
365-day period being applied to the Term Loans pursuant to Section
3.1.2; provided, further, however, that (i) at any time when any
Default or Event of Default shall have occurred and be continuing, all
Casualty Proceeds (together with Net Disposition Proceeds not applied
as provided in clause (f) below) shall be deposited in an account
maintained with the Administrative Agent to pay for such rebuilding or
replacement whenever no Default or Event of Default is then continuing
or except as otherwise agreed to by the Agents for disbursement at the
request of the Borrower, such Parent Guarantor or such Subsidiary, as
the case may be, or (ii) if all such Casualty Proceeds (together with
Net Disposition Proceeds not applied as provided in clause (f) below)
aggregating in excess of $1,000,000 have not yet been applied as
described in the notice required above (or in accordance with clause
(f) below), all such Casualty Proceeds and Net Disposition Proceeds
shall be deposited in an account maintained with the Administrative
Agent for
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disbursement at the request of the Borrower, such Parent Guarantor or
such Subsidiary, as the case may be, to be used for the purpose(s) set
forth in such written notice(s);
(f) shall, following the receipt by the Borrower, any Parent
Guarantor or any of their respective Subsidiaries of any Net
Disposition Proceeds in excess of $500,000 (individually or in the
aggregate (when taken together with Casualty Proceeds) over the course
of a Fiscal Year), deliver to the Administrative Agent a calculation
of the amount of such Net Disposition Proceeds and make a mandatory
prepayment of the Term Loans in an amount equal to 100% of such Net
Disposition Proceeds within one Business Day of the receipt thereof to
be applied as set forth in Section 3.1.2; provided, however, that no
mandatory prepayment on account of Net Disposition Proceeds shall be
required under this clause if the Borrower informs the Agents in
writing no later than one Business Day following the receipt of such
Net Disposition Proceeds of its, such Parent Guarantor's or such
Subsidiary's good faith intention to apply such Net Disposition
Proceeds to the replacement of the sold, conveyed or transferred
assets or property and the Borrower, such Parent Guarantor or such
Subsidiary in fact uses such Net Disposition Proceeds to replace such
assets or property within 365 days following the receipt of such Net
Disposition Proceeds, with the amount of such Net Disposition Proceeds
unused after such 365-day period being applied to the Term Loans
pursuant to Section 3.1.2; provided, further, however, that (i) at any
time when any Default or Event of Default shall have occurred and be
continuing, all Net Disposition Proceeds (together with Casualty
Proceeds not applied as provided in clause (e) above) shall be
deposited in an account maintained with the Administrative Agent to
pay for such replacement whenever no Default or Event of Default is
then continuing or except as otherwise agreed to by the Agents for
disbursement at the request of the Borrower, such Parent Guarantor or
such Subsidiary, as the case may be, or (ii) if all such Net
Disposition Proceeds (together with Casualty Proceeds not applied as
provided in clause (e) above) aggregating in excess of $1,000,000 have
not yet been applied as described in the notice required above (or in
accordance with clause (e) above), all such Net Disposition Proceeds
and Casualty Proceeds shall be deposited in an account maintained with
the Administrative Agent for disbursement at the request of the
Borrower, such Parent Guarantor or such Subsidiary, as the case may
be, to be used for the purpose(s) set forth in such written notice(s);
(g) shall, on each date when any reduction in the Revolving
Loan Commitment Amount shall become effective, make a mandatory
prepayment of Revolving Loans and Swing Line Loans and (if necessary)
deposit with the Administrative Agent cash collateral for Letter of
Credit Outstandings in an aggregate amount equal to the excess, if
any, of the sum of (i) the aggregate outstanding principal amount of
all Revolving Loans and Swing Line Loans and (ii) the aggregate amount
of all Letter of Credit Outstandings over the Revolving Loan
Commitment Amount as so reduced;
(h) shall on the Stated Maturity Date for Term Loans and each
Quarterly Payment Date occurring on any date or during any period set
forth below, make a scheduled repayment of the outstanding principal
amount, if any, of Term Loans in an
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amount equal to the amount set forth below opposite such date or
period (in each case as such amounts may have otherwise been reduced
pursuant to this Agreement):
SCHEDULED
PERIOD PRINCIPAL REPAYMENT
December 15, 1997 through
March 15, 2001 $165,000
June 15, 2001 $31,000,000
September 15, 2001 through
March 15, 2002 $165,000
June 15, 2002 $31,670,000; and
(i) shall, immediately upon the occurrence of the Stated
Maturity Date of any Loans or Obligations, whether by way of
acceleration pursuant to Section 8.2 or 8.3 or otherwise, repay all
outstanding Loans and other Obligations, unless, pursuant to Section
8.3, only a portion of all Loans and other Obligations are so
accelerated (in which case the portion so accelerated shall be so
prepaid).
Each prepayment of any Loans made pursuant to this Section shall be
without premium or penalty, except as may be required by Section 4.4. No
prepayment of principal of any Revolving Loans or Swing Line Loans pursuant to
clause (a) of this Section 3.1.1 shall cause a reduction in the Revolving Loan
Commitment Amount or the Swing Line Loan Commitment Amount, as the case may be.
SECTION 3.1.2. Application. (a) Subject to clause (b) below, each
prepayment or repayment of principal of the Loans of any Tranche shall be
applied, to the extent of such prepayment or repayment, first, to the principal
amount thereof being maintained as Base Rate Loans, and second, to the
principal amount thereof being maintained as LIBO Rate Loans.
(b) Each prepayment of Term Loans made pursuant to clauses (a), (b),
(c), (d), (e) and (f) of Section 3.1.1 shall be applied, on a pro rata basis,
to the outstanding principal amount of all remaining Term Loans and the
remaining scheduled quarterly amortization payments in respect thereof, until
all such Term Loans have been paid in full; provided, however, that in the case
of any such prepayment of Term Loans made pursuant to clause (b), (c), (d), (e)
and (f) of Section 3.1.1, any Lender that has Term Loans may elect not to have
such Loans prepaid by delivering a notice to the Administrative Agent at least
one Business Day prior to the date that such prepayment is to be made in which
notice such Lender shall decline to have such Loans prepaid with the amounts
set forth above, in which case the amounts that would have been applied to a
prepayment of such Lender's Term Loans shall instead be applied to a prepayment
of the principal amount (if any) of all outstanding Swing Line Loans until all
outstanding Swing Line Loans have been prepaid in full and then applied to a
prepayment of the principal amount (if any) of all outstanding Revolving Loans
until all outstanding Revolving Loans have been prepaid in full, with the
balance (if any) being returned by the Administrative Agent to the
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Borrower. No prepayment of principal of any Revolving Loans or Swing Line Loans
pursuant to the proviso of the immediately preceding sentence shall cause a
reduction in the Revolving Loan Commitment Amount or the Swing Line Loan
Commitment Amount, as the case may be.
SECTION 3.2. Interest Provisions. Interest on the outstanding
principal amount of the Loans shall accrue and be payable in accordance with
this Section 3.2.
SECTION 3.2.1. Rates. Each Base Rate Loan shall accrue interest on the
unpaid principal amount thereof for each day from and including the day upon
which such Loan was made or converted to a Base Rate Loan to but excluding the
date such Loan is repaid or converted to a LIBO Rate Loan at a rate per annum
equal to the sum of the Alternate Base Rate for such day plus the Applicable
Margin for such Loan on such day. Each LIBO Rate Loan shall accrue interest on
the unpaid principal amount thereof for each day from and including the first
day of the Interest Period applicable thereto to but excluding the date such
Loan is repaid or converted to a Base Rate Loan at a rate per annum equal to
the sum of the LIBO Rate (Reserve Adjusted) for such Interest Period plus the
Applicable Margin for such Loan on such day.
SECTION 3.2.2. Post-Maturity Rates. After the date any principal
amount of any Loan shall have become due and payable (whether on the applicable
Stated Maturity Date, upon acceleration or otherwise), or any other monetary
Obligation (other than overdue Reimbursement Obligations which shall bear
interest as provided in Section 2.6.2) of the Borrower shall have become due
and payable, the Borrower shall pay, but only to the extent permitted by law,
interest (after as well as before judgment) on such amounts at a rate per annum
equal to (a) in the case of any overdue principal of Loans, overdue interest
thereon, overdue commitment fees or other overdue amounts in respect of Loans
or other obligations (or the related Commitments) under a particular Tranche,
the rate that would otherwise be applicable to Base Rate Loans under such
Tranche pursuant to Section 3.2.1 plus 2% and (b) in the case of other overdue
monetary Obligations, the rate that would otherwise be applicable to Revolving
Loans made as Base Rate Loans plus 2%.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment, in whole or in
part, of principal outstanding on such Loan, to the extent of the
unpaid interest accrued through such date on the principal so paid or
prepaid;
(c) with respect to Base Rate Loans, on each Quarterly
Payment Date occurring after the Closing Date hereunder;
(d) with respect to LIBO Rate Loans, on the last day of the
applicable Interest Period (and, if such Interest Period shall exceed
three months, at intervals of three months after the first day of such
Interest Period);
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(e) with respect to the principal amount of any Base Rate
Loans converted into LIBO Rate Loans on a day when interest would not
otherwise have been payable pursuant to clause (c), on the date of
such conversion; and
(f) on that portion of any Loans the Stated Maturity Date of
which is accelerated pursuant to Section 8.2 or 8.3, immediately upon
such acceleration.
Interest accrued on Loans, Reimbursement Obligations or other monetary
Obligations arising under this Agreement or any other Loan Document after the
date such amount is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise) shall be payable upon demand.
SECTION 3.3. Fees. The Borrower agrees to pay the fees set forth in
this Section 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender that has a Revolving Loan
Commitment, for each day during the period (including any portion thereof when
any of the Lenders' Revolving Loan Commitments are suspended by reason of the
Borrower's inability to satisfy any condition of Article V) commencing on the
Closing Date and continuing to but excluding the Revolving Loan Commitment
Termination Date, a commitment fee on such Lender's Percentage of the unused
portion of the Revolving Loan Commitment Amount, whether or not then available,
for such day at a rate per annum equal to the Applicable Commitment Fee for
such day. Such commitment fees shall be payable by the Borrower in arrears on
each Quarterly Payment Date, commencing with the first such day following the
Closing Date, and on the Revolving Loan Commitment Termination Date. The making
of Swing Line Loans by the Swing Line Lender shall not constitute usage under
the Revolving Loan Commitment for the purpose of calculating the commitment
fees to be paid by the Borrower to the Lenders (other than the Swing Line
Lender) pursuant to this Section 3.3.1.
SECTION 3.3.2. Syndication Agent's, Administrative Agent's and
Arranger's Fees. The Borrower agrees to pay to each of the Syndication Agent,
the Administrative Agent and the Arranger for each such Person's own account,
the fees set forth in the Fee Letter and the Administrative Agent's Fee Letter
in accordance with their respective terms.
SECTION 3.3.3. Letter of Credit Fee. The Borrower agrees to pay to
(a) the Administrative Agent, for the pro rata account of the
Issuer and each other Lender that has a Revolving Loan Commitment, a
Letter of Credit fee for each day on which there shall be any Letters
of Credit outstanding in an amount equal to the product of (i) a rate
per annum equal to the then Applicable Margin for Revolving Loans
maintained as LIBO Rate Loans multiplied by (ii) the Stated Amount of
each such Letter of Credit; and
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(b) the Issuer (i) a Letter of Credit fronting fee for each
day on which there shall be any Letters of Credit outstanding in an
amount equal to 0.25% per annum on the Stated Amount of each such
Letter of Credit, and (ii) from time to time promptly after demand,
the normal issuance, presentation, amendment and other processing
fees, and other standard administrative costs and charges of the
Issuer relating to Letters of Credit as from time to time in effect.
Fees payable pursuant to this Section shall be payable quarterly in arrears on
each Quarterly Payment Date and on the Revolving Loan Commitment Termination
Date.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall determine
(which determination shall, upon notice thereof to the Borrower and the
Lenders, be conclusive and binding on the Borrower) that the introduction of or
any change in or in the interpretation of any law makes it unlawful, or any
central bank or other governmental authority asserts that it is unlawful, for
such Lender to make, continue or maintain any Loan as, or to convert any Loan
into, a LIBO Rate Loan, the obligations of such Lender to make, continue,
maintain or convert any Loans as or to LIBO Rate Loans shall, upon such
determination, forthwith be suspended until such Lender shall notify the
Administrative Agent that the circumstances causing such suspension no longer
exist (with the date of such notice being the "Reinstatement Date"), and (a)
all LIBO Rate Loans previously made by such Lender shall automatically convert
into Base Rate Loans at the end of the then current Interest Periods with
respect thereto or sooner, if required by such law or assertion and (b) all
Loans thereafter made by such Lender and outstanding prior to the Reinstatement
Date shall be made as Base Rate Loans, with interest thereon being payable on
the same date that interest is payable with respect to the corresponding
Borrowing of LIBO Rate Loans made by Lenders not so affected.
SECTION 4.2. Deposits Unavailable. If the Administrative Agent shall
have determined that (a) Dollar deposits in the relevant amount and for the
relevant Interest Period are not available to the Administrative Agent in its
relevant market, or (b) by reason of circumstances affecting the Administrative
Agent's relevant market, adequate means do not exist for ascertaining the
interest rate applicable hereunder to LIBO Rate Loans, then, upon notice from
the Administrative Agent to the Borrower and the Lenders, the obligations of
all Lenders under Sections 2.3 and 2.4 to make or continue any Loans as, or to
convert any Loans into, LIBO Rate Loans shall forthwith be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. The Borrower agrees
to reimburse each Lender for any increase in the cost to such Lender of, or any
reduction in the amount of any sum receivable by such Lender in respect of,
making, continuing or maintaining (or of its obligation to make, continue or
maintain) any Loans as, or of converting (or of its obligation to
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convert) any Loans into, LIBO Rate Loans. Such Lender shall promptly notify the
Administrative Agent and the Borrower in writing of the occurrence of any such
event, such notice to state, in reasonable detail, the reasons therefor and the
additional amount required fully to compensate such Lender for such increased
cost or reduced amount. Such additional amounts shall be payable by the
Borrower directly to such Lender within five days of its receipt of such
notice, and such notice shall, in the absence of manifest error, be conclusive
and binding on the Borrower.
SECTION 4.4. Funding Losses. In the event any Lender shall incur any
loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make, continue or maintain any portion of the principal amount of any Loan
as, or to convert any portion of the principal amount of any Loan into, a LIBO
Rate Loan) as a result of (i) any conversion or repayment or prepayment of the
principal amount of any LIBO Rate Loans on a date other than the scheduled last
day of the Interest Period applicable thereto, whether pursuant to Section 3.1
or otherwise, (ii) any Loans not being made as LIBO Rate Loans in accordance
with the Borrowing Request therefor, or (iii) any Loans not being continued as,
or converted into, LIBO Rate Loans in accordance with the Continuation/
Conversion Notice therefor, then, upon the written notice of such Lender to the
Borrower (with a copy to the Administrative Agent), the Borrower shall, within
five days of its receipt thereof, pay directly to such Lender such amount as
will (in the reasonable determination of such Lender) reimburse such Lender for
such loss or expense. Such written notice (which shall include calculations in
reasonable detail) shall, in the absence of manifest error, be conclusive and
binding on the Borrower.
SECTION 4.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority affects or would affect the amount of capital
required or expected to be maintained by any Lender, the Issuer or any Person
controlling such Lender or the Issuer, and such Lender or the Issuer determines
(in its sole and reasonable discretion) that the rate of return on its or such
controlling Person's capital as a consequence of its Commitments, participation
in, or the issuance or extension of, any Letter of Credit or any Loan made by
such Lender or the Issuer is reduced to a level below that which such Lender,
the Issuer or such controlling Person could have achieved but for the
occurrence of any such circumstance, then, in any such case upon notice from
time to time by such Lender or the Issuer to the Borrower, the Borrower shall
immediately pay directly to such Lender or the Issuer additional amounts
sufficient to compensate such Lender, the Issuer or such controlling Person for
such reduction in rate of return. A statement of such Lender or the Issuer as
to any such additional amount or amounts (including calculations thereof in
reasonable detail) shall, in the absence of manifest error, be conclusive and
binding on the Borrower. In determining such amount, such Lender or the Issuer
may use any method of averaging and attribution that it (in its sole and
absolute discretion) shall deem applicable.
SECTION 4.6. Taxes. (a) All payments by the Borrower of principal of,
and interest on, the Loans and all other amounts payable hereunder (including
Reimbursement Obligations, fees
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and expenses) shall be made free and clear of and without deduction for any
present or future income, excise, stamp or franchise taxes and other taxes,
fees, duties, withholdings or other charges of any nature whatsoever imposed by
any taxing authority, but excluding franchise taxes and taxes imposed on or
measured by any Agent's, the Documentation Agent's, the Issuer's or any
Lender's net income or receipts (such non-excluded items being called "Taxes").
In the event that any withholding or deduction from any payment to be made by
the Borrower hereunder is required in respect of any Taxes pursuant to any
applicable law, rule or regulation, then the Borrower will (i) pay directly to
the relevant taxing authority the full amount required to be so withheld or
deducted, (ii) promptly forward to the Administrative Agent an official receipt
or other documentation satisfactory to the Administrative Agent evidencing such
payment to such authority, and (iii) pay to the Administrative Agent for the
account of such Agent, the Documentation Agent, the Issuer or such Lender such
additional amount or amounts as is necessary to ensure that the net amount
actually received by such Agent, the Documentation Agent, the Issuer or such
Lender will equal the full amount such Agent, the Documentation Agent, the
Issuer or such Lender would have received had no such withholding or deduction
been required.
Moreover, if any Taxes are directly asserted against any Agent, the
Documentation Agent, the Issuer or any Lender with respect to any payment
received by such Agent, the Documentation Agent, the Issuer or such Lender
hereunder, such Agent, the Documentation Agent, the Issuer or such Lender may
pay such Taxes and the Borrower will promptly pay to such Person such
additional amounts (including any penalties, interest or expenses) as is
necessary in order that the net amount received by such Person after the
payment of such taxes (including any Taxes on such additional amount) shall
equal the amount such Person would have received had such Taxes not been
asserted.
If the Borrower fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Administrative Agent, for the account
of the respective Lenders, the required receipts or other required documentary
evidence, the Borrower shall indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure. For purposes of this Section 4.6, a distribution hereunder by the
Administrative Agent or any Lender to or for the account of any Lender shall be
deemed a payment by the Borrower.
(b) Upon the request of the Borrower or the Administrative Agent, each
Lender that is organized under the laws of a jurisdiction other than the United
States shall, on or prior to the due date of any payments under this Agreement
to such Lender, provide two or more (as the Borrower or the Administrative
Agent may reasonably request) United States Internal Revenue Service Forms 4224
or Forms 1001 or, solely if such Lender is claiming exemption from United
States withholding tax under Section 871(h) or 881(c) of the Code with respect
to payments of "portfolio interest", United States Internal Revenue Service
Forms W-8 and a certificate signed by a duly authorized officer of such Lender
representing that such Lender is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code, or such other forms or documents (or successor forms
or documents), appropriately completed, as may be applicable to establish the
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extent, if any, to which a payment to such Lender are exempt from withholding
or deduction of Taxes.
SECTION 4.7. Payments, Computations, etc. Unless otherwise expressly
provided, all payments by or on behalf of the Borrower pursuant to this
Agreement, the Notes or any other Loan Document shall be made by the Borrower
to the Administrative Agent for the pro rata account of the Lenders, the
Documentation Agent, Agents or Arranger, as applicable, entitled to receive
such payment. All such payments required to be made to the Administrative Agent
shall be made, without setoff, deduction or counterclaim, not later than 11:00
a.m., New York City time, on the date due, in same day or immediately available
funds, to such account as the Administrative Agent shall specify from time to
time by notice to the Borrower. Funds received after that time shall be deemed
to have been received by the Administrative Agent on the next succeeding
Business Day. The Administrative Agent shall promptly remit in same day funds
to each Lender, the Documentation Agent, each Agent or the Arranger, as the
case may be, its share, if any, of such payments received by the Administrative
Agent for the account of such Lender, the Documentation Agent, such Agent or
the Arranger, as the case may be. All interest and fees shall be computed on
the basis of the actual number of days (including the first day but excluding
the last day) occurring during the period for which such interest or fee is
payable over a year comprised of 360 days (or, in the case of interest on a
Base Rate Loan that is not calculated at the Federal Funds Rate, 365 days or,
if appropriate, 366 days). Whenever any payment to be made shall otherwise be
due on a day which is not a Business Day, such payment shall (except as
otherwise required by clause (a) of the definition of the term "Interest
Period") be made on the next succeeding Business Day and such extension of time
shall be included in computing interest and fees, if any, in connection with
such payment.
SECTION 4.8. Sharing of Payments. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Loan or Reimbursement Obligations (other
than pursuant to the terms of Sections 4.3, 4.4 and 4.5) in excess of its pro
rata share of payments then or therewith obtained by all Lenders entitled
thereto, such Lender shall purchase from the other Lenders such participations
in the Credit Extensions made by them as shall be necessary to cause such
purchasing Lender to share the excess payment or other recovery ratably with
each of them; provided, however, that if all or any portion of the excess
payment or other recovery is thereafter recovered from such purchasing Lender,
the purchase shall be rescinded and each Lender which has sold a participation
to the purchasing Lender shall repay to the purchasing Lender the purchase
price to the ratable extent of such recovery together with an amount equal to
such selling Lender's ratable share (according to the proportion of (i) the
amount of such selling Lender's required repayment to the purchasing Lender in
respect of such recovery, to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section may, to the fullest extent permitted by law, exercise
all its rights of payment (including pursuant to Section 4.9) with respect to
such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. If under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured
claim in lieu of a setoff to which this Section applies, such Lender
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shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders entitled
under this Section to share in the benefits of any recovery on such secured
claim.
SECTION 4.9. Setoff. Each Lender shall, upon the occurrence of any
Event of Default described in clauses (a) through (d) of Section 8.1.9 or, with
the consent of the Required Lenders, upon the occurrence of any other Event of
Default, to the fullest extent permitted by law, have the right to appropriate
and apply to the payment of the Obligations then owing to it (whether or not
then due), and (as security for such Obligations) the Borrower hereby grants to
each Lender a continuing security interest in, any and all balances, credits,
deposits, accounts or moneys of the Borrower then or thereafter maintained with
or otherwise held by such Lender; provided, however, that any such
appropriation and application shall be subject to the provisions of Section
4.8. Each Lender agrees promptly to notify the Borrower and the Administrative
Agent after any such setoff and application made by such Lender; provided,
however, that the failure to give such notice shall not affect the validity of
such setoff and application. The rights of each Lender under this Section are
in addition to other rights and remedies (including other rights of setoff
under applicable law or otherwise) which such Lender may have.
SECTION 4.10. Replacement of Lenders. Each Lender hereby severally
agrees as set forth in this Section. If any Lender (an "Affected Lender") makes
demand upon the Borrower for (or if the Borrower is otherwise required to pay)
amounts pursuant to Section 4.3, 4.5 or 4.6 and the payment of such additional
amounts are, and are likely to continue to be, more onerous in the reasonable
judgment of the Borrower than with respect to the other Lenders, the Borrower
may, within 30 days of receipt by the Borrower of such demand or notice (or the
occurrence of such other event causing the Borrower to be required to pay such
compensation), as the case may be, give notice (a "Replacement Notice") in
writing to the Agents and such Affected Lender of its intention to replace such
Affected Lender with a financial institution (a "Replacement Lender")
designated in such Replacement Notice. If the Agents shall, in the exercise of
their reasonable discretion and within 30 days of their receipt of such
Replacement Notice, notify the Borrower and such Affected Lender in writing
that the designated financial institution is satisfactory to the Agents (such
consent not being required where the Replacement Lender is already a Lender),
then such Affected Lender shall, subject to the payment of any amounts due
pursuant to Section 4.4, assign, in accordance with Section 11.11.1, all of its
Commitments, Loans, Notes and other rights and obligations under this Agreement
and all other Loan Documents (including Reimbursement Obligations, if
applicable) to such designated financial institution; provided, however, that
(i) such assignment shall be without recourse, representation or warranty and
shall be on terms and conditions reasonably satisfactory to such Affected
Lender and such designated financial institution, (ii) the purchase price paid
by such designated financial institution shall be in the amount of such
Affected Lender's Loans and its Percentage of outstanding Reimbursement
Obligations, together with all accrued and unpaid interest and fees in respect
thereof, plus all other amounts (including the amounts demanded and
unreimbursed under Sections 4.3, 4.5 and 4.6), owing to such Affected Lender
hereunder and (iii) the Borrower shall pay to the Affected Lender and the
Agents all reasonable out-of-pocket expenses incurred by the Affected Lender
and the Agents in connection with such assignment and assumption (including the
processing fees described in Section 11.11.1). Upon the effective date of an
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assignment described above, the Replacement Lender shall become a "Lender" for
all purposes under this Agreement and the other Loan Documents.
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION 5.1. Initial Credit Extension. The obligations of the Lenders
and, if applicable, the Issuer to fund the initial Credit Extension shall be
subject to the prior or concurrent satisfaction of each of the conditions
precedent set forth in this Section 5.1.
SECTION 5.1.1. Corporate and Partnership Documents, etc. The Agents
shall have received, with a copy for each Lender,
(a) from each Obligor that is a corporation a certificate,
dated the Closing Date, of its Secretary or Assistant Secretary as to
(i) resolutions of its Board of Directors then in full force and
effect authorizing the execution, delivery and performance of each
Loan Document to be executed by it, (ii) the incumbency and signatures
of those of its officers authorized to act with respect to each Loan
Document executed by it and (iii) the full force and validity of its
Organic Documents and true and complete copies thereof, upon which
certificate each Agent, the Documentation Agent, the Issuer and each
Lender may conclusively rely until it shall have received a further
certificate of the Secretary or Assistant Secretary of such Obligor
canceling or amending such prior certificate; and
(b) from each Obligor that is a partnership, a certificate,
dated the Closing Date, of each of its general partners as to (i) all
partnership action then in full force and effect authorizing the
execution, delivery and performance of each Loan Document to be
executed by it, (ii) the incumbency and signatures of those officers
of its general partners authorized to act with respect to each Loan
Document executed by it and (iii) the full force and validity of its
Organic Documents and true and complete copies thereof, upon which
certificate each Agent, the Documentation Agent, the Issuer and each
Lender may conclusively rely until it shall have received a further
certificate canceling or amending such prior certificate.
SECTION 5.1.2. Consummation of Refinancing. The Refinancing shall have
been consummated in accordance with the terms hereof on the Closing Date for an
aggregate amount not to exceed $91,000,000, including the payment of reasonable
fees and expenses associated with the Refinancing in an amount not to exceed
$3,500,000.
SECTION 5.1.3. Closing Date Certificates. The Agents shall have
received, with counterparts for each Lender, the Closing Date Certificates,
substantially in the forms of Exhibits D-1 and D-2 hereto, dated the Closing
Date and duly executed and delivered by the chief executive, financial or
accounting (or equivalent) Authorized Officer of the Borrower, in which
certificate the Borrower shall agree and acknowledge that the statements made
therein
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shall be deemed to be true and correct representations and warranties of the
Borrower made as of such date under this Agreement, and, at the time such
certificate is delivered, such statements shall in fact be true and correct.
SECTION 5.1.4. Delivery of Notes. The Agents shall have received, for
the account of each Lender that shall have requested a Note not less than two
Business Days prior to the Closing Date, a Note of each applicable Tranche duly
executed and delivered by an Authorized Officer of the Borrower.
SECTION 5.1.5. Pledge Agreement. The Agents shall have received
executed counterparts of the Parent Pledge Agreement, dated as of the Closing
Date, duly executed and delivered by an Authorized Officer of each of Holdings
and Daboco together with the certificates evidencing all of the issued and
outstanding shares of Capital Stock (or similar equity interests) of each
direct Subsidiary of Holdings and each direct Subsidiary of Daboco (in which a
security interest is not concurrently granted under the Partnership Security
Agreement) which shall be pledged pursuant to the Parent Pledge Agreement,
which certificates shall in each case be accompanied by undated stock powers
duly executed in blank. If any securities pledged pursuant to a Pledge
Agreement are uncertificated securities or are held through a financial
intermediary, the Administrative Agent shall have received confirmation and
evidence satisfactory to it that appropriate book entries have been made in the
relevant books or records of a financial intermediary or the issuer of such
securities, as the case may be, or other appropriate steps have been taken
under applicable law resulting in the perfection of the security interest
granted in favor of the Administrative Agent in such securities pursuant to the
terms of the applicable Pledge Agreement.
SECTION 5.1.6. Security Agreements. The Agents shall have received
executed counterparts of the Partnership Security Agreement and the Borrower
Security Agreement, each dated as of the Closing Date and duly executed and
delivered by an Authorized Officer of each of Daboco and DRI and the Borrower,
together with
(a) executed Uniform Commercial Code financing statements
(Form UCC-1) naming Daboco, DRI or the Borrower as the debtor and the
Administrative Agent as the secured party, or other similar
instruments or documents, to be filed under the Uniform Commercial
Code of all jurisdictions as may be necessary or, in the opinion of
the Administrative Agent, desirable to perfect the security interest
of the Administrative Agent pursuant to the Security Agreements; and
(b) certified copies of Uniform Commercial Code Requests for
Information or Copies (Form UCC-11), or a similar search report
certified by a party acceptable to the Agents, dated a date reasonably
near to the Closing Date, listing all effective financing statements
which name Daboco, DRI or the Borrower (under its present name and any
previous names) as the debtor and which are filed in the jurisdictions
in which filings were made pursuant to clause (a) above, together with
copies of such financing statements.
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SECTION 5.1.7. Mortgage. The Agents shall have received counterparts
of each Mortgage relating to each property listed on Item 6.9 ("Real Property")
of the Disclosure Schedule and designated as being the property to which a
Mortgage relates, each dated the date hereof, duly executed by the Borrower or
the applicable Parent Guarantor, together with
(a) evidence of the completion of all recordings and filings
of such Mortgage as may be necessary or, in the reasonable opinion of
the Agents, desirable effectively to create a valid, perfected first
priority Lien against the properties purported to be covered thereby;
(b) mortgagee's title insurance policies in favor of the
Administrative Agent for the benefit of the Secured Parties in amounts
and in form and substance and issued by insurers, reasonably
satisfactory to the Agents, with respect to the property purported to
be covered by such Mortgage, insuring that title to such property is
marketable and that the interests created by the Mortgage constitute
valid first Liens thereon free and clear of all defects and
encumbrances other than as approved by the Agents, and such policies
shall also include a revolving credit endorsement and such other
endorsements as the Agents shall request and shall be accompanied by
evidence of the payment in full of all premiums thereon; and
(c) such other approvals or documents as the Agents may
reasonably request.
SECTION 5.1.8. Financial Information, etc. The Agents shall have
received, with counterparts for each Lender,
(a) the (i) audited consolidated financial statements of
Holdings and its Subsidiaries and Daboco and its Subsidiaries for the
Fiscal Years ended on December 31, 1994, December 30, 1995 and
December 28, 1996, (ii) unaudited consolidated financial statements of
Holdings and its Subsidiaries and Daboco and its Subsidiaries for the
Fiscal Quarters ended on March 29, 1997 and June 28, 1997 and (iii)
unaudited consolidated financial statements of Holdings and its
Subsidiaries and Daboco and its Subsidiaries for the fiscal months
ended on July 26, 1997 and August 23, 1997 (collectively, the "Base
Financial Statements"); and
(b) pro forma consolidated balance sheets of Holdings and its
Subsidiaries and Daboco and its Subsidiaries, as at August 23, 1997
(the "Pro Forma Balance Sheets"), certified by the chief financial or
accounting Authorized Officers of Holdings and Daboco, respectively,
giving effect to the consummation of the Refinancing and reflecting
the proposed legal and capital structures of Holdings and its
Subsidiaries and the Borrower and its Subsidiaries, in each case, as
at the Closing Date, which legal and capital structure shall be
satisfactory in all respects to the Agents.
SECTION 5.1.9. Solvency, etc. The Agents shall have received, with
copies for each Lender
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(a) a written opinion of Valuation Research Corporation,
addressed to the Agents, the Documentation Agent and the Lenders and
dated the Closing Date, as to the solvency of Holdings and its
Subsidiaries and the Borrower and its Subsidiaries, in each case taken
as a whole, and after giving effect to the incurrence of the
Indebtedness contemplated by this Agreement, which opinion shall be
satisfactory in all respects to the Agents, and
(b) Solvency Certificates, executed and delivered by the
chief financial or accounting Authorized Officer of each of Holdings
and the Borrower and dated the Closing Date, substantially in the form
of Exhibit L-1 and L-2 hereto.
SECTION 5.1.10. Change of Control Offerings. The Agents shall have
received evidence satisfactory to each of them that, as of the Closing Date
(a) (i) Holdings has offered to purchase its Holdings
Subordinated Notes pursuant to a Change of Control Offer (as defined
in the Holdings Subordinated Note Indenture), (ii) such Change of
Control Offer has expired, and (iii) Holdings has repurchased any
Holdings Subordinated Notes tendered pursuant to such Change of
Control Offer; and
(b) (i) the Borrower has offered to purchase its Senior Notes
pursuant to a Change of Control Offer (as defined in the Senior Note
Indenture), (ii) such Change of Control Offer has expired, and (iii)
the Borrower has repurchased any Senior Notes tendered pursuant to
such Change of Control Offer.
SECTION 5.1.11. Payment of Outstanding Indebtedness, etc. All
Indebtedness identified in Item 7.2.2(b) ("Indebtedness to be Paid") of the
Disclosure Schedule, together with all interest, prepayment premiums and other
amounts due and payable with respect thereto, shall have been paid in full
(including, to the extent necessary, from proceeds of the initial Credit
Extension); and all Liens securing payment of any such Indebtedness have been
released or, in each Agent's discretion, assigned, and the Administrative Agent
shall have received all Uniform Commercial Code Form UCC-3 termination
statements or other instruments or documents as may be suitable or appropriate
in connection therewith in the determination of the Agents.
SECTION 5.1.12. Litigation. There shall exist no pending or threatened
material litigation, proceedings or investigations which (x) contests the
consummation of the Refinancing or the legality or validity of the Credit
Agreement, any other Loan Document or any Material Document or (y) could
reasonably be expected to have a Material Adverse Effect.
SECTION 5.1.13. Material Adverse Change. Except as set forth in Item
6.6 ("Material Adverse Change") of the Disclosure Schedule, there shall have
occurred no material adverse change in the business, assets, debt service
capacity, tax position, environmental liability, financial condition,
operations, properties or prospects of the Borrower and its Subsidiaries, taken
as a whole, or Holdings and its Subsidiaries, taken as a whole, in each case
since December 28, 1996.
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SECTION 5.1.14. Opinions of Counsel. The Agents shall have received
opinions, dated the Closing Date and addressed to the Agents, the Documentation
Agent and all Lenders from Xxxxxx & Xxxxxxx, special New York counsel to each
of the Obligors, in substantially the form of Exhibit K hereto.
SECTION 5.1.15. Insurance. The Agents shall have received satisfactory
evidence of the existence of insurance in compliance with Section 7.1.4
(including all endorsements included therein), and the Administrative Agent
shall be named additional insured or loss payee, on behalf of the Lenders,
pursuant to documentation reasonably satisfactory to the Agents.
SECTION 5.1.16. Perfection Certificate. The Agents shall have received
Perfection Certificates, dated as of the Closing Date, duly executed and
delivered by an Authorized Officer of each of Daboco, DRI, the Borrower and
each other Obligor that is a party to a Security Agreement.
SECTION 5.1.17. Approvals. All necessary governmental, shareholders'
and third-party approvals in connection with the Refinancing and the execution,
delivery and performance of this Agreement and the other Loan Documents shall
have been duly obtained and all applicable waiting periods shall have expired
without, in all such cases, any action being taken or threatened by any
competent authority that would restrain, prevent or otherwise imposes adverse
conditions on the financing contemplated hereby or the continued operations of
any Parent Guarantor, the Borrower or any of their respective Subsidiaries.
SECTION 5.1.18. Closing Fees, Expenses, etc. Each Agent and the
Arranger shall have received, each for its own respective account, all fees,
costs and expenses due and payable to such Agent or the Arranger, as the case
may be, pursuant to Sections 3.3 and 11.3, to the extent then invoiced.
SECTION 5.1.19. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of the Borrower or any of its
Subsidiaries or any other Obligors shall be reasonably satisfactory in form and
substance to the Agents and their counsel; the Agents and their counsel shall
have received all information, approvals, opinions, documents or instruments as
the Agents or their counsel may reasonably request.
SECTION 5.2. All Credit Extensions. The obligation of each Lender and,
if applicable, the Issuer, to make any Credit Extension (including its initial
Credit Extension) shall be subject to the satisfaction of each of the
conditions precedent set forth in this Section 5.2.
SECTION 5.2.1. Compliance with Warranties, No Default, etc. Both
before and after giving effect to any Credit Extension the following statements
shall be true and correct:
(a) the representations and warranties set forth in Article
VI (excluding, however, those contained in Section 6.7) and each other
Loan Document shall, in each case, be true and correct with the same
effect as if then made (unless stated to relate solely to an
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earlier date, in which case such representations and warranties shall
be true and correct as of such earlier date);
(b) except as disclosed by the Borrower or any Parent
Guarantor to the Agents, the Documentation Agent and the Lenders
pursuant to Section 6.7
(i) no labor controversy, litigation, arbitration
or governmental investigation or proceeding (including any
relating to any Pharmaceutical Law) shall be pending or, to
the knowledge of the Borrower or any Parent Guarantor,
threatened against the Borrower, any Parent Guarantor or any
of their respective Subsidiaries which could reasonably be
expected to have a Material Adverse Effect or which purports
to affect the legality, validity or enforceability of this
Agreement, the Notes or any other Loan Document; and
(ii) no development shall have occurred in any
labor controversy, litigation, arbitration or governmental
investigation or proceeding (including any relating to any
Pharmaceutical Law) disclosed pursuant to Section 6.7 which
could reasonably be expected to have a Material Adverse
Effect; and
(c) no Default shall have then occurred and be continuing,
and neither the Borrower, any Parent Guarantor nor any of their
respective Subsidiaries are in material violation of any law or
governmental regulation or court order or decree (including any
Pharmaceutical Law).
SECTION 5.2.2. Credit Extension Request. The Agents shall have
received a Borrowing Request if Loans are being requested, or an Issuance
Request if a Letter of Credit is being requested or extended. Each of the
delivery of a Borrowing Request or Issuance Request and the acceptance by the
Borrower of proceeds of any Credit Extension shall constitute a representation
and warranty by the Borrower that on the date of such Credit Extension (both
immediately before and after giving effect thereto and the application of the
proceeds thereof) the statements made in Section 5.2.1 are true and correct.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Documentation Agent, the Issuer
and the Agents to enter into this Agreement and to make Credit Extensions
hereunder, each of the Borrower and each Parent Guarantor represents and
warrants unto the Agents, the Documentation Agent, the Issuer and each Lender
as set forth in this Article VI.
SECTION 6.1. Organization, etc. Each of the Borrower, each Parent
Guarantor and each of their respective Subsidiaries (a) is a corporation or
partnership validly organized and existing and in good standing to the extent
required under the laws of the jurisdiction of its incorporation
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or formation, is duly qualified to do business and is in good standing as a
foreign corporation or partnership to the extent required under the laws of
each jurisdiction where the nature of its business requires such qualification,
and (b) has full power and authority and holds all requisite governmental
licenses, permits and other approvals to (i) enter into and perform its
Obligations in connection with the Refinancing and under this Agreement, the
Notes and each other Loan Document to which it is a party and (ii) own and hold
under lease its property and to conduct its business substantially as currently
conducted by it.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by each of the Borrower, each Parent Guarantor and
each of their respective Subsidiaries of this Agreement, the Notes and each
other Loan Document executed or to be executed by it, and the Borrower's and,
where applicable, each such other Obligor's participation in the consummation
of the Refinancing, are within the Borrower's and each such Obligor's corporate
or partnership powers, have been duly authorized by all necessary corporate or
partnership action, and do not (i) contravene the Borrower's or any such
Obligor's Organic Documents, (ii) contravene any contractual restriction, law
or governmental regulation or court decree or order binding on or affecting the
Borrower or any such Obligor, or (iii) result in, or require the creation or
imposition of, any Lien on any of the Borrower's or any other Obligor's
properties, except pursuant to the terms of a Loan Document.
SECTION 6.3. Government Approval, Regulation, etc. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person, is required for the due
execution, delivery or performance by any of the Borrower, any Parent Guarantor
or any of their respective Subsidiaries of this Agreement, the Notes or any
other Loan Document to which it is a party, or for the Borrower's and each such
other Obligor's participation in the consummation of the Refinancing, except as
have been duly obtained or made and are in full force and effect. None of the
Borrower, any Parent Guarantor or any of their respective Subsidiaries is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, or a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
SECTION 6.4. Validity, etc. This Agreement constitutes, and the Notes
and each other Loan Document executed, or to be executed, by any of the
Borrower, any Parent Guarantor or any of their respective Subsidiaries, as the
case may be, constitutes, or will on the due execution and delivery thereof
constitute, the legal, valid and binding obligations of the Borrower and such
other Obligor enforceable in accordance with their respective terms.
SECTION 6.5. Financial Information. The Borrower has delivered to the
Agents, the Documentation Agent and each Lender copies of each of (a) the Base
Financial Statements, and (b) the Pro Forma Balance Sheets. Each of the
financial statements described above has been prepared in accordance with GAAP
consistently applied (in the case of clause (a)) and, in the case of clause
(b), on a basis substantially consistent with the basis used to prepare the
financial statements referred to in clause (a), and (in the case of clause (a))
present fairly the consolidated
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financial condition of the corporations and partnerships covered thereby as at
the date thereof and the results of their operations for the periods then ended
and (in the case of clause (b)) include appropriate pro forma adjustments to
give pro forma effect to the Refinancing.
SECTION 6.6. No Material Adverse Change. Except as set forth in Item
6.6 ("Material Adverse Change") of the Disclosure Schedule, since December 28,
1996, there has been no material adverse change in the business, assets, debt
service capacity, tax position, environmental liability, financial condition,
operations, properties or prospects of the Borrower and its Subsidiaries, taken
as a whole, or Holdings and its Subsidiaries, taken as a whole.
SECTION 6.7. Litigation, Labor Controversies, etc. There is no pending
or, to the knowledge of the Borrower or any Parent Guarantor, threatened
litigation, action, proceeding, labor controversy, arbitration or governmental
investigation or proceeding (including any relating to any Pharmaceutical Law)
affecting the Borrower, any Parent Guarantor or any of their respective
Subsidiaries, or any of their respective properties, businesses, assets or
revenues, which might have a Material Adverse Effect or which purports to
affect the legality, validity or enforceability of this Agreement, the Notes or
any other Loan Document, except as disclosed in Item 6.7 ("Litigation") of the
Disclosure Schedule.
SECTION 6.8. Subsidiaries. Holdings has no direct Subsidiaries other
than Daboco. Daboco has no direct Subsidiaries other than DRI and the Borrower
(of which it is a general partner and directly holds a 99% general partnership
interest). DRI has no direct Subsidiaries other than the Borrower (of which it
is a general partner and holds a 1% general partnership interest). The Borrower
has no Subsidiaries, except those Subsidiaries which are permitted to have been
acquired in accordance with Section 7.2.5 or 7.2.8.
SECTION 6.9. Ownership of Properties. Each of the Borrower, each
Parent Guarantor and each of their respective Subsidiaries owns (except where
the failure to own such property would not reasonably be expected to have a
Material Adverse Effect) good and marketable title to all of its properties and
assets, real and personal, tangible and intangible, of any nature whatsoever
(including patents, trademarks, trade names, service marks and copyrights),
free and clear of all Liens, charges or claims (including infringement claims
with respect to patents, trademarks, copyrights and the like), except as
permitted pursuant to Section 7.2.3. All Real Property owned or leased by any
of the Borrower, each Parent Guarantor and each of their respective
Subsidiaries and the nature of the interest therein is described in Item 6.9
("Real Property") of the Disclosure Schedule.
SECTION 6.10. Taxes. Each of the Borrower, each Parent Guarantor and
each of their respective Subsidiaries has filed all tax returns and reports
required by law to have been filed by it and has paid all taxes and
governmental charges thereby shown to be owing, except any such taxes or
charges which are being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall have
been set aside on its books.
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SECTION 6.11. Pension and Welfare Plans. During the
twelve-consecutive-month period prior to the date of the execution and delivery
of this Agreement and prior to the Closing Date, no steps have been taken to
terminate any Pension Plan (other than pursuant to a "standard termination" in
accordance with section 4041(B) of ERISA), and no contribution failure has
occurred with respect to any Pension Plan sufficient to give rise to a Lien
under section 302(f) of ERISA. No condition exists or event or transaction has
occurred with respect to any Pension Plan which could reasonably be expected to
result in the incurrence by the Borrower or any member of the Controlled Group
of any material liability, fine or penalty. Except as disclosed in Item 6.11
("Employee Benefit Plans") of the Disclosure Schedule, neither the Borrower nor
any member of the Controlled Group has any contingent liability with respect to
any post-retirement benefit under a Welfare Plan, other than liability for
continuation coverage described in Part 6 of Title I of ERISA.
SECTION 6.12. Environmental Warranties. Except as set forth in Item
6.12 ("Environmental Matters") of the Disclosure Schedule:
(a) all facilities and property (including underlying
groundwater) owned or leased by the Borrower, any Parent Guarantor or
any of their respective Subsidiaries have been, and continue to be,
owned or leased by the Borrower, such Parent Guarantor or such
Subsidiary in material compliance with all Environmental Laws;
(b) there have been no past, and there are no pending or, to
the best of each of the Borrower's and each Parent Guarantor's
knowledge after due inquiry, threatened
(i) claims, complaints, notices or requests for
information received by the Borrower, any Parent Guarantor or
any of their respective Subsidiaries with respect to any
alleged violation of any Environmental Law, or
(ii) complaints, notices or inquiries to the
Borrower, any Parent Guarantor or any of their respective
Subsidiaries regarding potential liability under any
Environmental Law;
(c) there have been no Releases of Hazardous Materials at, on
or under any property now or previously owned or leased by the
Borrower, any Parent Guarantor or any of their respective Subsidiaries
that, singly or in the aggregate, have, or could reasonably be
expected to have, a Material Adverse Effect;
(d) the Borrower, each Parent Guarantor and each of their
respective Subsidiaries have been issued and are in material
compliance with all permits, certificates, approvals, licenses and
other authorizations relating to environmental matters and necessary
or desirable for their businesses;
(e) no property now or previously owned or leased by the
Borrower, any Parent Guarantor or any of their respective Subsidiaries
is listed or, to the best of each of the Borrower's and each Parent
Guarantor's knowledge after due inquiry, proposed for
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listing (with respect to owned property only) on the National
Priorities List pursuant to CERCLA, on the CERCLIS or on any similar
state list of sites requiring investigation or clean-up;
(f) there are no underground storage tanks, active or
abandoned, including petroleum storage tanks, on or under any property
now or previously owned or leased by the Borrower, any Parent
Guarantor or any of their respective Subsidiaries that, singly or in
the aggregate, have, or could reasonably be expected to have, a
Material Adverse Effect;
(g) neither the Borrower, any Parent Guarantor nor any of
their respective Subsidiaries has directly transported or directly
arranged for the transportation of any Hazardous Material to any
location which is listed or proposed for listing on the National
Priorities List pursuant to CERCLA, on the CERCLIS or on any similar
state list or which is the subject of federal, state or local
enforcement actions or other investigations which may lead to claims
against the Borrower, such Parent Guarantor or such Subsidiary thereof
for any remedial work, damage to natural resources or personal injury,
including claims under CERCLA that, singly or in the aggregate, have,
or could reasonably be expected to have, a Material Adverse Effect;
(h) there are no polychlorinated biphenyls or friable
asbestos present at any property now or previously owned or leased by
the Borrower, any Parent Guarantor or any of their respective
Subsidiaries that, singly or in the aggregate, have, or could
reasonably be expected to have, a Material Adverse Effect; and
(i) no conditions exist at, on or under any property now or
previously owned or leased by the Borrower, any Parent Guarantor or
any of their respective Subsidiaries which, with the passage of time,
or the giving of notice or both, would give rise to liability under
any Environmental Law that could reasonably be expected to have a
Material Adverse Effect.
SECTION 6.13. Regulations G, U and X. Neither the Borrower, any Parent
Guarantor nor any of their respective Subsidiaries is engaged in the business
of extending credit for the purpose of purchasing or carrying margin stock, and
no proceeds of any Credit Extension will be used to acquire any "margin stock".
Terms for which meanings are provided in F.R.S. Board Regulation G, U or X or
any regulations substituted therefor, as from time to time in effect, are used
in this Section with such meanings.
SECTION 6.14. Accuracy of Information. All material factual
information concerning the financial condition, operations or prospects of the
Borrower, each Parent Guarantor and their respective Subsidiaries heretofore or
contemporaneously furnished by or on behalf of the Borrower in writing to the
Agents, the Documentation Agent, the Arranger, the Issuer or any Lender for
purposes of or in connection with this Agreement or any transaction
contemplated hereby or with respect to the Refinancing is, and all other such
factual information hereafter furnished by or on behalf of the Borrower, any
Parent Guarantor or any of their respective
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Subsidiaries to the Agents, the Documentation Agent, the Arranger, the Issuer
or any Lender will be, taken as a whole, true and accurate in all material
respects on the date as of which such information is dated or certified and
such information is not, or shall not be, taken as a whole, as the case may be,
incomplete by omitting to state any material fact necessary to make such
information not misleading at such time in light of the circumstances under
which such statements were made. Any term or provision of this Section to the
contrary notwithstanding, insofar as any of the factual information described
above includes assumptions, estimates, projections or opinions, no
representation or warranty is made herein with respect thereto; provided,
however, that to the extent any such assumptions, estimates, projections or
opinions are based on factual matters, the Borrower and each Parent Guarantor
have reviewed such factual matters and nothing has come to the attention of any
such Person in the context of such review which would lead it to believe that
such factual matters were not or are not true and correct in all material
respects or that such factual matters omit to state any material fact necessary
to make such assumptions, estimates, projections or opinions not misleading in
any material respect.
SECTION 6.15. Solvency. The Refinancing (including, among other
things, the incurrence of the initial Credit Extension hereunder and the
execution and delivery by the Guarantors of the Guarantees) will not involve or
result in any fraudulent transfer or fraudulent conveyance under the provisions
of Section 548 of the Bankruptcy Code (11 U.S.C. ss.101 et seq., as from time
to time hereafter amended, and any successor or similar statute) or any
applicable state law respecting fraudulent transfers or fraudulent conveyances.
On the Closing Date, after giving effect to the Refinancing, Holdings and its
Subsidiaries and the Borrower and its Subsidiaries, in each case taken as a
whole, are Solvent.
SECTION 6.16. Pharmaceutical Laws. (a) The Borrower, each Parent
Guarantor and each of their respective Subsidiaries has obtained all permits,
licenses and other authorizations which are required with respect to the
ownership and operations of its business under any Pharmaceutical Law, except
where the failure to obtain such permits, licenses or other authorizations
would not reasonably be expected to have a Material Adverse Effect.
(b) The Borrower, each Parent Guarantor and each of their respective
Subsidiaries is in compliance with all terms and conditions of all such
permits, licenses, orders and authorizations, and is also in compliance with
all Pharmaceutical Laws, including all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules and
timetables contained in the Pharmaceutical Laws, except where the failure to
comply with such terms, conditions or laws would not reasonably be expected to
have a Material Adverse Effect.
(c) Other than as set forth in Item 6.16(c) ("Pharmaceutical
Liabilities") of the Disclosure Schedule, none of the Borrower, any Parent
Guarantor nor any of their respective Subsidiaries has any liabilities, any
claims against it and presently any outstanding notices imposed or based upon
any provision of any Pharmaceutical Law, except for such liabilities, claims,
citations or notices which individually or in the aggregate would not
reasonably be expected to have a Material Adverse Effect.
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SECTION 6.17. Seniority of the Obligations and Permitted Indebtedness
under the Indentures. (a) Each Holdings Subordinated Note Document (including
the Holdings Subordinated Notes) constitutes the legal, valid and binding
obligation of Holdings enforceable against Holdings in accordance with its
terms. The subordination provisions of such Holdings Subordinated Note Document
will be enforceable against the holders of the Holdings Subordinated Notes by
the holder of any "Senior Indebtedness" (as defined in the Holdings
Subordinated Indenture). All Obligations, including those to pay principal of
and interest (including post-petition interest) on the Loans and Reimbursement
Obligations, and fees and expenses in connection therewith, constitute "Senior
Indebtedness" (as defined in the Holdings Subordinated Indenture) and all such
Obligations are entitled to the benefits of the subordination created by such
Holdings Subordinated Note Document. Holdings acknowledges that the Agents, the
Documentation Agent, the Issuer and each Lender is entering into this
Agreement, and is extending its Commitments, in reliance upon the subordination
provisions of such Holdings Subordinated Note Documents and this Section.
(b) The Obligations hereunder and the other Loan Documents constitute
"Permitted Indebtedness" as defined in each of the Senior Note Indenture and
the Holdings Subordinated Note Indenture.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. Each of the Borrower and each
Parent Guarantor agrees with the Agents, the Documentation Agent, the Issuer
and each Lender that, until all Commitments have terminated, all Letters of
Credit have terminated or expired and all Obligations have been paid and
performed in full, each of the Borrower and each Parent Guarantor will perform,
or cause to be performed by their respective Subsidiaries, the obligations set
forth in this Section 7.1.
SECTION 7.1.1. Financial Information, Reports, Notices, etc. Each of
the Borrower and each Parent Guarantor will furnish, or will cause to be
furnished, to each Lender, the Documentation Agent, the Issuer and each Agent
copies of the following financial statements, reports, notices and information:
(a) as soon as available and in any event within 30 days
after the end of each fiscal month other than the last such month of
any Fiscal Quarter of the Borrower, a consolidated balance sheet of
Holdings and its Subsidiaries and a consolidated balance sheet of
Daboco and its Subsidiaries as at the end of such month, together, in
each case, with the related consolidated statements of income and cash
flows for such month and for the period commencing at the end of the
previous Fiscal Year and ending with the last day of such month,
certified by the chief financial or accounting Authorized Officer of
each of Holdings and Daboco;
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(b) as soon as available and in any event within 60 days
after the end of each of the first three Fiscal Quarters of each
Fiscal Year of the Borrower (or, if the Borrower is required to file
such information on a Form 10-Q with the Securities and Exchange
Commission, promptly following such filing), a consolidated balance
sheet of Holdings and its Subsidiaries and a consolidated balance
sheet of Daboco and its Subsidiaries as of the end of such Fiscal
Quarter, together, in each case, with the related consolidated
statements of income and cash flows for such Fiscal Quarter and for
the period commencing at the end of the previous Fiscal Year and
ending with the end of such Fiscal Quarter, certified by the chief
financial or accounting Authorized Officers of each of Holdings and
Daboco;
(c) as soon as available and in any event within 90 days
after the end of each Fiscal Year of the Borrower (or, if the Borrower
is required to file such information on a Form 10-K with the
Securities and Exchange Commission, promptly following such filing),
(i) a copy of the annual audit report for such Fiscal Year for
Holdings and its Subsidiaries, including therein a consolidated
balance sheet for Holdings and its Subsidiaries as of the end of such
Fiscal Year, together with the related consolidated statements of
income and cash flows for such Fiscal Year, and (ii) a copy of the
annual audit report for such Fiscal Year for Daboco and its
Subsidiaries, including therein a consolidated balance sheet for
Daboco and its Subsidiaries as of the end of such Fiscal Year,
together with the related consolidated statements of income and cash
flows for such Fiscal Year, in each case certified (without any
Impermissible Qualification) by Price Waterhouse LLP or another
nationally recognized firm of independent public accountants
acceptable to the Agents, together with a certificate from such
accountants as to whether, in making the examination necessary for the
signing of such annual report by such accountants, they have not
become aware of any Default that has occurred and is continuing or, if
in the opinion of such accounting firm such a Default has occurred and
is continuing, a statement as to the nature thereof;
(d) together with the delivery of the financial information
required pursuant to clauses (b) and (c), a Compliance Certificate, in
substantially the form of Exhibit E, executed by the chief financial
or accounting Authorized Officer of the Borrower, showing (in
reasonable detail and with appropriate calculations and computations
in all respects satisfactory to the Agents) compliance with, among
other things, the financial covenants set forth in Section 7.2.4;
(e) (i) as soon as available and in any event no later than
60 days after the first day of each Fiscal Year of the Borrower, an
annual budget, setting forth on a monthly basis and in reasonable
detail for such Fiscal Year of each of Holdings and its Subsidiaries
and Daboco and its Subsidiaries, in each case containing consolidated
and consolidating projected statements of earnings and cash flow and
(ii) together with the delivery of financial statements pursuant to
clause (a), (b) or (c) above, a comparison of the current year to date
financial results (other than in respect of the balance sheets
included therein) against the budgets required to be submitted
pursuant to this clause (e);
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(f) as soon as possible and in any event within five Business
Days after obtaining knowledge of the occurrence of any Default, a
statement of the president, chief executive officer, treasurer,
assistant treasurer, controller or chief financial or accounting
Authorized Officer of the Borrower or Holdings setting forth details
of such Default and the action which the Borrower or Holdings, as the
case may be, has taken or proposes to take with respect thereto;
(g) as soon as possible and in any event within five Business
Days after (x) the occurrence of any material adverse development with
respect to any litigation, action, proceeding, labor controversy,
arbitration or governmental investigation or proceeding described in
Section 6.7 or (y) the commencement of any labor controversy,
litigation, action, proceeding of the type described in Section 6.7,
notice thereof and of the action which the Borrower or Holdings has
taken or proposes to take with respect thereto;
(h) promptly after the sending or filing thereof, copies of
all reports and registration statements (other than exhibits thereto
and any registration statement on Form S-8 or its equivalent) which
the Borrower, any Parent Guarantor or any of their respective
Subsidiaries files with the Securities and Exchange Commission or any
national securities exchange;
(i) as soon as practicable after the chief executive or chief
financial or accounting Authorized Officer of the Borrower or the
chief executive or chief financial or accounting officer of a member
of the Borrower's Controlled Group becomes aware of (i) formal steps
in writing to terminate any Pension Plan or (ii) the occurrence of any
event with respect to a Pension Plan which, in the case of (i) or
(ii), could reasonably be expected to result in a contribution to such
Pension Plan by (or a liability to) the Borrower or a member of the
Borrower's Controlled Group in excess of $1,000,000, (iii) the failure
to make a required contribution to any Pension Plan if such failure is
sufficient to give rise to a Lien under section 302(f) of ERISA, (iv)
the taking of any action with respect to a Pension Plan which could
reasonably be expected to result in the requirement that the Borrower,
any Parent Guarantor or any of their respective Subsidiaries furnish a
bond to the PBGC or such Pension Plan or (v) any material increase in
the contingent liability of the Borrower, any Parent Guarantor or any
of their respective Subsidiaries with respect to any post-retirement
Welfare Plan benefit, notice thereof and copies of all documentation
relating thereto;
(j) as soon as possible and in any event within five Business
Days after the delivery thereof, copies of all notices, agreements or
documents delivered pursuant to the Senior Note Documents, the
Holdings Subordinated Note Documents, and each other agreement for
borrowed money to which any Parent Guarantor, the Borrower or any
their respective Subsidiaries is a party and with a commitment or
outstandings exceeding $3,000,000, except for such notices, agreements
or documents delivered pursuant to the terms hereof; and
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(k) such other information respecting the condition or
operations, financial or otherwise, of the Borrower, any Parent
Guarantor or any of their respective Subsidiaries as any Lender
through any Agent may from time to time reasonably request.
SECTION 7.1.2. Compliance with Laws, etc. Each of the Borrower and
each Parent Guarantor will, and will cause each of their respective
Subsidiaries to, comply in all material respects with all applicable laws,
rules, regulations, orders, decrees, judgments and injunctions, such compliance
to include (a) the maintenance and preservation of its corporate or partnership
existence and qualification as a foreign corporation or partnership, (b) the
payment, before the same become delinquent, of all material taxes, assessments
and governmental charges imposed upon it or upon its property except to the
extent being contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its
books and (c) compliance with all Pharmaceutical Laws.
SECTION 7.1.3. Maintenance of Properties. Each of the Borrower and
each Parent Guarantor will, and will cause each of their respective
Subsidiaries to, maintain, preserve, protect and keep its material properties
in good repair, working order and condition (ordinary wear and tear excepted),
and make necessary and proper repairs, renewals and replacements so that its
business carried on in connection therewith may be properly conducted at all
times unless the Borrower determines in good faith that the continued
maintenance of any of such properties is no longer economically desirable.
SECTION 7.1.4. Insurance. Each of the Borrower and each Parent
Guarantor will, and will cause each of their respective Subsidiaries to,
maintain or cause to be maintained with insurance companies rated A- or better
by A.M. Best Company insurance with respect to its properties and business
against such casualties and contingencies and of such types and in such amounts
as is customary in the case of similar businesses in similar geographic
locations and with such provisions and endorsements as the Agents may
reasonably request (provided that in no event will any deductible or
self-insured retention in respect of liability claims or in respect of casualty
damage exceed, in each such case, $500,000 per occurrence) and will, upon
request of the Agents, furnish to the Agents, the Documentation Agent and each
Lender a certificate of an Authorized Officer of the Borrower setting forth the
nature and extent of all insurance maintained by each of the Borrower, each
Parent Guarantor and each of their respective Subsidiaries in accordance with
this Section. Without limiting the foregoing, each of the Borrower and each
Parent Guarantor will, and will cause each of their respective Subsidiaries to,
ensure that:
(a) Each policy for property insurance shall show the
Administrative Agent as loss payee.
(b) Each policy for liability insurance shall show the
Administrative Agent as an additional insured.
(c) With respect to each life insurance policy, the Borrower,
such Parent Guarantor or such Subsidiary, as the case may be, shall
execute and deliver to the
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Administrative Agent a collateral assignment, notice of which has been
acknowledged in writing by the insurer.
(d) Each insurance policy shall provide that at least 30
days' prior written notice of cancellation or of lapse shall be given
to the Administrative Agent by the insurer.
(e) The Borrower, such Parent Guarantor or such Subsidiary,
as the case may be, shall, if so requested by the Administrative
Agent, deliver to the Administrative Agent a copy of each insurance
policy.
SECTION 7.1.5. Books and Records. Each of the Borrower and each Parent
Guarantor will, and will cause each of their respective Subsidiaries to, (a)
keep books and records which accurately reflect in all material respects all of
its business affairs and transactions and (b) permit the Agents, the
Documentation Agent, the Issuer and each Lender or any of their respective
representatives, at reasonable times and intervals, and upon reasonable notice,
(i) to visit all of its offices, (ii) to discuss its financial matters with its
officers and, after notice to the Borrower and provision of an opportunity for
the Borrower to participate in such discussion, its independent public
accountant (and each of the Borrower and each Parent Guarantor hereby
authorizes, and will cause each of their respective Subsidiaries to authorize,
such independent public accountant to discuss the Borrower's, such Parent
Guarantor's or such Subsidiary's financial matters with the Issuer and each
Lender or its representatives whether or not any representative of the
Borrower, such Parent Guarantor or such Subsidiary is present, so long as the
Borrower, such Parent Guarantor or such Subsidiary has been afforded a
reasonable opportunity to be present) and (iii) to examine, and photocopy
extracts from, any of its books or other corporate or partnership records. The
cost and expense of one such visit (the "Paid Visit") by each Agent in each
Fiscal Year shall be borne by the Borrower; provided, however, that the cost
and expenses of any visit made by such Agent after a Default or an Event of
Default has occurred and is then continuing shall be for the account of the
Borrower and shall not count as the Paid Visit made by such Agent.
SECTION 7.1.6. Environmental Covenant. Each of the Borrower and each
Parent Guarantor will, and will cause each of their respective Subsidiaries to,
(a) use and operate all of its facilities and properties in
material compliance with all Environmental Laws, keep all necessary
permits, approvals, certificates, licenses and other authorizations
relating to environmental matters in effect and remain in material
compliance therewith, and handle all Hazardous Materials in material
compliance with all applicable Environmental Laws;
(b) (i) ensure that the 10,000 gallon steel underground
storage tank located at the Borrower's facility at 00-00 00xx Xxxxx,
Xxxx Xxxxxx Xxxx, Xxx Xxxx, is tested in accordance with accepted
industry procedures within six months from the Closing Date by an
environmental consulting firm reasonably acceptable to the Agents and
(ii) take corrective measures in accordance with accepted industry
procedures to ensure the
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Borrower's compliance with all applicable federal and state rules and
regulations if leakage is found;
(c) immediately notify the Agents and provide copies upon
receipt of all written claims, complaints, notices or inquiries
relating to the condition of its facilities and properties or
compliance with Environmental Laws; and
(d) provide such information and certifications which the
Agents may reasonably request from time to time to evidence compliance
with this Section 7.1.6.
SECTION 7.1.7. Future Subsidiaries. Each of the Borrower and each
Parent Guarantor hereby covenants and agrees that, upon any Person becoming,
after the Closing Date, a Subsidiary of the Borrower, or (in the case of clause
(b) below only) upon the Borrower or any Subsidiary acquiring additional
Capital Stock of any existing Subsidiary, the Borrower shall notify the Agents
of such acquisition, and
(a) the Borrower shall promptly cause such Subsidiary to
execute and deliver to the Administrative Agent, with counterparts for
each Lender, a Subsidiary Guaranty (or a supplement thereto in the
form of the exhibit thereto), the Subsidiary Security Agreement (or a
supplement thereto in the form of the exhibit thereto) (and, if such
Subsidiary owns any real property, a Mortgage) and a Perfection
Certificate, together with Uniform Commercial Code financing
statements (form UCC-1) executed and delivered by the Subsidiary
naming the Subsidiary as the debtor and the Administrative Agent as
the secured party, or other similar instruments or documents, in
appropriate form for filing under the Uniform Commercial Code and any
other applicable recording statutes, in the case of real property, of
all jurisdictions as may be necessary or, in the opinion of the
Administrative Agent, desirable to perfect the security interest of
the Administrative Agent pursuant to the Subsidiary Security Agreement
or a Mortgage, as the case may be; and
(b) the Borrower shall promptly deliver the Borrower Pledge
Agreement to the Agents, duly executed and delivered by an Authorized
Officer of the Borrower (unless so executed and delivered previously),
and shall promptly deliver, or cause to be delivered, the Subsidiary
Pledge Agreement to the Agents, duly executed and delivered by an
Authorized Officer of the relevant Subsidiary (unless so executed and
delivered previously), and shall promptly deliver, or cause to be
delivered, to the Administrative Agent under a Pledge Agreement (or a
supplement thereto) certificates (if any) representing all of the
issued and outstanding shares of Capital Stock of such Subsidiary
owned by the Borrower or any Subsidiary of the Borrower, as the case
may be, along with undated stock powers for such certificates,
executed in blank, or, if any securities subject thereto are
uncertificated securities or are held through a financial
intermediary, confirmation and evidence satisfactory to the Agents
that appropriate book entries have been made in the relevant books or
records of a financial intermediary or the issuer of such securities,
as the case may be, or other appropriate steps shall have been taken
under
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applicable law resulting in the perfection of the security interest
granted in favor of the Administrative Agent pursuant to the terms of
a Pledge Agreement;
together, in each case, with such opinions, in form and substance and from
counsel satisfactory to the Agents, as the Agents may reasonably request;
provided, however, that notwithstanding the foregoing, no Foreign Subsidiary
shall be required to execute and deliver (x) a Mortgage or the Subsidiary
Security Agreement (or a supplement thereto) or (y) the Subsidiary Guaranty (or
a supplement thereto) in the event that such execution and delivery thereof
would result in a material increase in tax or similar liabilities for the
Borrower and its Subsidiaries, on a consolidated basis, nor will the Borrower
or any Subsidiary of the Borrower be required to deliver in pledge pursuant to
a Pledge Agreement in excess of 65% of the total combined voting power of all
classes of Capital Stock of a Foreign Subsidiary entitled to vote in the event
that such pledge would result in a material increase in tax or similar
liabilities for the Borrower and its Subsidiaries, on a consolidated basis.
SECTION 7.1.8. Future Leased Property and Future Acquisitions of Real
Property; Future Acquisition of Other Property. (a) Prior to entering into any
new lease of real property or renewing any existing lease of real property
following the Closing Date, each of the Borrower and each Parent Guarantor
shall, and shall cause each of their respective Subsidiaries that is not a
Foreign Subsidiary to, use its (and their) commercially reasonable best efforts
(which shall not require the expenditure of cash or the making of any material
concessions under the relevant lease) to deliver to the Administrative Agent a
Waiver executed by the lessor of any real property that is to be leased by the
Borrower, such Parent Guarantor or such Subsidiary for a term in excess of one
year in any state which by statute grants such lessor a "landlord's" (or
similar) Lien which is superior to the Administrative Agent's.
(b) In the event that the Borrower, any Parent Guarantor or any of
their respective Subsidiaries that is not Foreign Subsidiary shall acquire any
real property having a value as determined in good faith by the Agents in
excess of $1,000,000 in the aggregate, the Borrower, such Parent Guarantor or
such Subsidiary shall, promptly after such acquisition, execute a Mortgage and
provide the Agents with (i) evidence of the completion (or satisfactory
arrangements for the completion) of all recordings and filings of such Mortgage
as may be necessary or, in the reasonable opinion of the Agents, desirable
effectively to create a valid, perfected first priority Lien, subject to Liens
permitted by Section 7.2.3, against the properties purported to be covered
thereby, (ii) mortgagee's title insurance policies in favor of the
Administrative Agent for the benefit of the Secured Parties in amounts and in
form and substance and issued by insurers, reasonably satisfactory to the
Agents, with respect to the property purported to be covered by such Mortgage,
insuring that title to such property is marketable and that the interests
created by the Mortgage constitute valid first Liens thereon free and clear of
all defects and encumbrances other than as approved by the Agents, and such
policies shall also include a revolving credit endorsement and such other
endorsements as the Agents shall request and shall be accompanied by evidence
of the payment in full of all premiums thereon, and (iii) such other approvals,
opinions, or documents as the Agents may reasonably request.
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(c) In accordance with the terms and provisions of the Security
Documents, provide the Agents with evidence of all recordings and filings as
may be necessary or, in the reasonable opinion of the Agents, desirable to
create a valid, perfected first priority Lien, subject to the Liens permitted
by Section 7.2.3, against all property acquired after the Closing Date
(excluding leases of real property) and not otherwise subject to Section 5.1.7.
SECTION 7.1.9. Use of Proceeds, etc. The Borrower shall, and each
Parent Guarantor shall cause the Borrower to,
(a) apply the proceeds of the Loans
(i) to refinance existing Indebtedness of the
Borrower under the Existing Credit Agreement and to pay
reasonable fees and expenses associated with the Refinancing;
and
(ii) in the case of Revolving Loans and Swing Line
Loans, for the general corporate purposes of the Borrower and
its Subsidiaries, including working capital needs; and
(b) use Letters of Credit only for purposes of supporting
working capital and general corporate purposes of the Borrower and its
Subsidiaries.
SECTION 7.1.10. Hedging Obligations. Within nine months following the
Closing Date, the Agents shall have received evidence satisfactory to them that
the Borrower has entered into Rate Protection Agreements designed to protect
the Borrower against fluctuations in interest rates with respect to the Term
Loans with terms reasonably satisfactory to the Agents.
SECTION 7.1.11. Maintenance of Corporate Separateness. Each Parent
Guarantor will satisfy customary corporate formalities, including the
maintenance of corporate records. Each Parent Guarantor shall not make any
payment to a creditor of any other Obligor in respect of any liability of such
Obligor (other than pursuant to a Contingent Liability permitted hereunder),
and no bank account of such Parent Guarantor shall be commingled with any bank
account of any other Obligor. Any financial statements distributed to any
creditors of any Parent Guarantor shall, to the extent permitted by GAAP,
clearly establish the corporate separateness of such Parent Guarantor from each
other Obligor. Finally, each Parent Guarantor shall not take any action, or
conduct its affairs in a manner, which is likely to result in the corporate
existence of such Parent Guarantor on the one hand and of any other Obligor on
the other hand being ignored, or in the assets and liabilities of such other
Obligor being substantively consolidated with those of such Parent Guarantor in
a bankruptcy, reorganization or other insolvency proceeding.
SECTION 7.1.12. Borrower Indebtedness. Any Indebtedness of the
Borrower now or hereafter held by any Parent Guarantor or any of their
respective Subsidiaries (other than the Borrower) is hereby subordinated to the
Indebtedness of the Borrower to the Agents, the Issuer and the Lenders; and
such indebtedness of the Borrower to such Parent Guarantor or such Subsidiary,
if the Agents, after an Event of Default has occurred, so requests, shall be
collected,
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enforced and received by such Parent Guarantor or such Subsidiary as trustee
for the Agents, the Issuer and the Lenders and be paid over to the
Administrative Agent on behalf of the Agents, the Issuer and the Lenders on
account of the indebtedness of the Borrower to the Agents, the Issuer and the
Lenders, but without affecting or impairing in any manner the obligations of
such Parent Guarantor or such Subsidiary hereunder or under each other Loan
Document to which it is a party. Prior to the transfer by any Parent Guarantor
or any their respective Subsidiaries (other than the Borrower) of any note or
negotiable instrument evidencing any indebtedness of the Borrower to such
Parent Guarantor or such Subsidiary, such Parent Guarantor or such Subsidiary
shall xxxx such note or negotiable instrument with a legend that the same is
subject to this subordination.
SECTION 7.2. Negative Covenants. Each of the Borrower and each Parent
Guarantor agrees with the Agents, the Documentation Agent, the Issuer and each
Lender that, until all Commitments have terminated, all Letters of Credit have
terminated or expired and all Obligations have been paid and performed in full,
each of the Borrower and each Parent Guarantor will perform the obligations set
forth in this Section 7.2.
SECTION 7.2.1. Business Activities. (a) The Borrower will not, and
will not permit any of its Subsidiaries to, engage in any business activity,
except business activities of the type in which the Borrower and its
Subsidiaries are engaged on the date hereof and such activities as may be
incidental, similar or related thereto.
(b) No Parent Guarantor will engage in any business activity other
than (i) its continuing ownership of (A) in the case of Holdings, all the
shares of Capital Stock of Daboco, (B) in the case of Daboco, its 99% general
partnership interest in the Borrower and all the shares of Capital Stock of DRI
and (C) in the case of DRI, its 1% general partnership interest in the
Borrower, and (ii) its compliance with the obligations applicable to it under
the Loan Documents and the Senior Note Documents and the Holdings Subordinated
Note Documents. Without limiting the generality of the immediately preceding
sentence, no Parent Guarantor will take any action including the filing of any
income tax return, that would result in the Borrower ceasing to be treated as a
partnership within meaning of Section 761(a) of the Code for Federal income tax
purposes.
SECTION 7.2.2. Indebtedness. Each of the Borrower and each Parent
Guarantor will not, and will not permit any of their respective Subsidiaries
to, create, incur, assume or suffer to exist or otherwise become or be liable
in respect of any Indebtedness, other than, without duplication, the following:
(a) Indebtedness in respect of the Credit Extensions and
other Obligations;
(b) until the Closing Date, Indebtedness identified in Item
7.2.2(b) ("Indebtedness to be Paid") of the Disclosure Schedule;
(c) Indebtedness identified in Item 7.2.2(c) ("Ongoing
Indebtedness") of the Disclosure Schedule;
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(d) Indebtedness evidenced by the Senior Notes;
(e) Indebtedness evidenced by the Holdings Subordinated
Notes;
(f) Indebtedness in an aggregate principal amount not to
exceed $10,000,000 at any time outstanding which is, or has been,
incurred by the Borrower or any of its Subsidiaries (i) to a vendor of
any assets permitted to be acquired pursuant to Section 7.2.7 to
finance its acquisition of such assets or (ii) in respect of
Capitalized Lease Liabilities to the extent permitted by Section
7.2.7;
(g) Indebtedness of the Borrower owing to any Subsidiary
Guarantor;
(h) Indebtedness of Subsidiary Guarantors that are
Wholly-owned Subsidiaries of the Borrower owing to the Borrower or any
other Subsidiary Guarantor;
(i) Indebtedness of Subsidiaries of the Borrower owing to the
Borrower or a Subsidiary Guarantor to the extent permitted by clause
(e) of Section 7.2.5;
(j) Hedging Obligations of the Borrower in respect of the
Loans;
(k) unsecured Indebtedness of the Borrower or any of its
Subsidiaries incurred in the ordinary course of business (including
open accounts extended by suppliers on normal trade terms in
connection with purchases of goods and services, but excluding
Indebtedness incurred through the borrowing of money or Contingent
Liabilities);
(l) Indebtedness of the Borrower incurred under the Rapid
Remit Program in an aggregate amount at any time outstanding not to
exceed $5,000,000;
(m) Indebtedness which refinances Indebtedness permitted by
clause (c), (d) and (e) above; provided, however, that after giving
effect to such refinancing, (i) the principal amount of outstanding
Indebtedness is not increased (other than in the case of a refinancing
of Indebtedness permitted by clause (d) or (e) above by the amount of
reasonable fees and expenses incurred in connection with such
refinancing), (ii) neither the tenor nor the average life thereof is
reduced, (iii) the respective obligor or obligors shall be the same on
the refinancing Indebtedness as on the Indebtedness being refinanced,
(iv) the security, if any, for the refinancing Indebtedness shall be
the same as that for the Indebtedness being refinanced (except to the
extent that less security is granted to holders of such refinancing
Indebtedness), (v) the holders of such refinancing Indebtedness are
not afforded covenants, defaults, rights or remedies more burdensome
to the obligor or obligors than those contained in the Indebtedness
being refinanced and (vi) the refinancing Indebtedness is subordinated
to the same degree, if any, as the Indebtedness being refinanced; and
(n) other unsecured Indebtedness of the Borrower and its
Subsidiaries in an aggregate amount at any time outstanding not to
exceed $5,000,000;
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provided, however, that (i) no Indebtedness otherwise permitted by clause (f)
or (n) may be incurred if, after giving effect to the incurrence thereof, any
Default shall have occurred and be continuing and (ii) no Indebtedness
otherwise permitted hereunder by any of clauses (a) through (n) may be incurred
if, after giving effect to the application thereof, there shall be a "Default"
or "Event of Default" under and as defined in either of the Senior Note
Indenture or the Holdings Subordinated Note Indenture, in each case as in
effect on the Closing Date.
SECTION 7.2.3. Liens. Each of the Borrower and each Parent Guarantor
will not, and will not permit any of their respective Subsidiaries to, create,
incur, assume or suffer to exist any Lien upon any of its property, revenues or
assets, whether now owned or hereafter acquired, except:
(a) Liens securing payment of the Obligations or any Hedging
Obligations owed to any Lender or any Affiliate of any Lender, granted
pursuant to any Loan Document;
(b) until the Closing Date, Liens securing payment of
Indebtedness of the type permitted and described in clause (b) of
Section 7.2.2;
(c) Liens granted prior to the Closing Date to secure payment
of Indebtedness of the type permitted and described in clause (c) of
Section 7.2.2;
(d) Liens granted to secure payment of Indebtedness of the
type permitted and described in clause (f) of Section 7.2.2 and
covering only those assets acquired with the proceeds of such
Indebtedness;
(e) Liens for taxes, assessments or other governmental
charges or levies not at the time delinquent or thereafter payable
without penalty or being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books;
(f) Liens of carriers, warehousemen, mechanics, materialmen
and landlords incurred in the ordinary course of business for sums not
overdue or being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books;
(g) Liens incurred in the ordinary course of business in
connection with workmen's compensation, unemployment insurance or
other forms of governmental insurance or benefits, or to secure
performance of tenders, statutory obligations, leases and contracts
(other than for borrowed money) entered into in the ordinary course of
business or to secure obligations on surety or appeal bonds;
(h) judgment Liens in existence less than 15 days after the
entry thereof or with respect to which execution has been stayed or
the payment of which is covered in full (subject to a customary
deductible) by insurance maintained with insurance companies of the
nature described in Section 7.1.4;
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(i) Liens granted by the Borrower in favor of Pharmacy Fund
(A) securing the recourse obligations owing to Pharmacy Fund pursuant
to the Rapid Remit Program for rejected or adjusted Prescription
Receivables, (B) consisting of the right of set-off granted to
Pharmacy Fund in connection with rejected or adjusted receivables,
other payments owing to Pharmacy Fund and administrative fees and
expenses pursuant to the Rapid Remit Program and (C) consisting of
precautionary liens on receivables, chattel paper, general intangibles
and the proceeds thereof directly related to the Rapid Remit Program;
and
(j) Liens with respect to minor imperfections of title and
easements, rights-of-way, restrictions, reservations, permits,
servitudes and other similar encumbrances on real property and
fixtures which do not materially detract from the value or materially
impair the use by the Borrower or any of its Subsidiaries in the
ordinary course of their business of the property subject thereto.
SECTION 7.2.4. Financial Covenants. (a) Net Worth. Each of the
Borrower and each Parent Guarantor will not permit Net Worth at any time from
and after the Closing Date to be less than an amount equal to 50% of the
cumulative Net Income (in excess of zero) for the period from the Closing Date
to the end of the Fiscal Quarter most recently ended on or prior to such date
of determination.
(b) Leverage Ratio. Each of the Borrower and each Parent Guarantor
will not permit the Leverage Ratio as of the end of any Fiscal Quarter ending
after the Closing Date and occurring during any period set forth below to be
greater than the ratio set forth opposite such period:
Period Leverage Ratio
------ --------------
fourth Fiscal Quarter of the 1997
Fiscal Year through the third
Fiscal Quarter of the 1998
Fiscal Year 4.75:1
fourth Fiscal Quarter of the 1998
Fiscal Year through the third
Fiscal Quarter of the 1999
Fiscal Year 4.00:1
fourth Fiscal Quarter of the 1999
Fiscal Year through the third
Fiscal Quarter of the 2000
Fiscal Year 3.50:1
fourth Fiscal Quarter of the 2000
Fiscal Year and each Fiscal
Quarter thereafter 3.00:1
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(c) Interest Coverage Ratio. Each of the Borrower and each Parent
Guarantor will not permit the Interest Coverage Ratio as of the end of any
Fiscal Quarter ending after the Closing Date and occurring during any period
set forth below to be less than the ratio set forth opposite such period:
Period Interest Coverage Ratio
------ -----------------------
fourth Fiscal Quarter of the 1997
Fiscal Year through the third
Fscal Quarter of the 1998
Fiscal Year 2.00:1
fourth Fiscal Quarter of the 1998
Fiscal Year through the third
Fiscal Quarter of the 1999
Fiscal Year 2.25:1
fourth Fiscal Quarter of the 1999
Fiscal Year through the third
Fiscal Quarter of the 2000
Fiscal Year 2.75:1
fourth Fiscal Quarter of the 2000
Fiscal Year through the third
Fiscal Quarter of the 2001
Fiscal Year 3.00:1
fourth Fiscal Quarter of the 2001
Fiscal Year and each Fiscal
Quarter thereafter 3.50:1
(d) Fixed Charge Coverage Ratio. Each of the Borrower and each Parent
Guarantor will not permit the Fixed Charge Coverage Ratio as of the end of any
Fiscal Quarter ending after the Closing Date to be less than 1.10:1.
SECTION 7.2.5. Investments. Each of the Borrower and each Parent
Guarantor will not, and will not permit any of their respective Subsidiaries
to, make, incur, assume or suffer to exist any Investment in any other Person,
except:
(a) Investments existing on the Closing Date and identified
in Item 7.2.5(a) ("Ongoing Investments") of the Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) without duplication, Investments permitted as
Indebtedness pursuant to Section 7.2.2;
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(d) without duplication, Investments permitted as Capital
Expenditures of the Borrower and its Subsidiaries pursuant to Section
7.2.7;
(e) Investments by any Parent Guarantor, the Borrower or any
Subsidiary Guarantor in the Borrower or Subsidiary Guarantors that are
Wholly-owned Subsidiaries of the Borrower;
(f) Investments to the extent the consideration received
pursuant to clause (c)(i) of Section 7.2.9 is not all cash;
(g) Investments in the form of loans to officers, directors
and employees of the Borrower and its Subsidiaries for the sole
purpose of purchasing Capital Stock of Holdings (or purchases of such
loans made by others) in an aggregate amount at any time outstanding
not to exceed $2,000,000;
(h) other Investments made by the Borrower or any of its
Subsidiaries, by way of contributions to capital, the making of loans
or advances or the incurrence of Contingent Liabilities, in an
aggregate amount not to exceed $5,000,000 at any time outstanding,
which Investments shall result in the Borrower or the relevant
Subsidiary acquiring (subject to Section 7.2.1) a majority controlling
interest in the Person in which such Investment was made or increasing
any such controlling interest maintained by it in such Person; or
(i) other Investments made by the Borrower or any of its
Subsidiaries in an aggregate amount not to exceed $1,000,000 at any
time outstanding;
provided, however, that
(j) any Investment which when made complies with the
requirements of the definition of the term "Cash Equivalent
Investment" may continue to be held notwithstanding that such
Investment if made thereafter would not comply with such requirements;
(k) no Investment otherwise permitted by clause (c) (except
to the extent permitted under Section 7.2.2), (f), (g), (h) or (i)
shall be permitted to be made if, immediately before or after giving
effect thereto, any Default shall have occurred and be continuing; and
(l) no Investment otherwise permitted by clauses (a) through
(i) may be made if, after giving effect to the application thereof,
there shall be a "Default" or "Event of Default" under and as defined
in either of the Senior Note Indenture or the Holdings Subordinated
Note Indenture, in each case as in effect on the Closing Date.
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SECTION 7.2.6. Restricted Payments, etc. On and at all times after the
date hereof:
(a) each of the Borrower and each Parent Guarantor will not,
and will not permit any of their respective Subsidiaries to, declare,
pay or make any dividend, distribution or exchange (in cash, property
or obligations) on or in respect of any shares of any class of Capital
Stock (now or hereafter outstanding) of the Borrower or any Parent
Guarantor or on any warrants, options or other rights with respect to
any shares of any class of Capital Stock (now or hereafter
outstanding) of the Borrower or any Parent Guarantor (other than (i)
dividends or distributions payable in its common stock or warrants to
purchase its common stock and (ii) splits or reclassifications of its
stock into additional or other shares of its common stock) or apply,
or permit any of its Subsidiaries to apply, any of its funds, property
or assets to the purchase, redemption, exchange, sinking fund or other
retirement of, or agree or permit any of its Subsidiaries to purchase,
redeem or exchange, any shares of any class of Capital Stock (now or
hereafter outstanding) of the Borrower or any Parent Guarantor,
warrants, options or other rights with respect to any shares of any
class of Capital Stock (now or hereafter outstanding) of the Borrower
or any Parent Guarantor;
(b) each of the Borrower and each Parent Guarantor will not
permit any of its Subsidiaries to (i) make any payment or prepayment
of principal of, or make any payment of interest on, any subordinated
note (including any Senior Note) on any day other than the stated,
scheduled date for such payment or prepayment set forth in the
documents and instruments memorializing such subordinated note, or
which would violate the subordination provisions of such subordinated
note, or (ii) redeem, purchase or defease any subordinated note (the
foregoing prohibited acts referred to in clauses (a) and (b) above are
herein collectively referred to as "Restricted Payments");
provided, however, that
(c) notwithstanding the provisions of clause (a) above,
beginning on March 15, 2000, the Borrower shall be permitted to make
Restricted Payments to Daboco (which shall in turn utilize all of any
such Restricted Payment to make Restricted Payments to Holdings) and
to DRI (which shall in turn utilize all of any such Restricted Payment
to make Restricted Payments to Daboco, which shall in turn utilize all
of any such Restricted Payment to make Restricted Payments to
Holdings) to the extent necessary to enable Holdings to pay interest
on the Holdings Subordinated Notes, so long as (i) no Default or Event
of Default exists or would result therefrom, (ii) the Restricted
Payments referred to below are permitted to be paid at such time under
the Senior Note Indenture, (iii) Holdings has given the trustee under
and in accordance with the Holdings Subordinated Note Indenture notice
that it intends to pay in cash a semi-annual interest payment on the
Holdings Subordinated Notes and (iv) at the time of Holdings giving
such notice, the Pro Forma Interest Coverage Ratio for the four Fiscal
Quarters then most recently ended preceding the date on which such
Restricted Payment is to be made equaled or exceeded 2.0:1.0;
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(d) notwithstanding the provisions of clause (a) above, the
Borrower shall be permitted to make Restricted Payments to Daboco
(which may in turn utilize all or part of any such Restricted Payment
to make Restricted Payments to Holdings) and to DRI (which may in turn
utilize all or part of any such Restricted Payment to make Restricted
Payments to Daboco, which may in turn utilize all or part of any such
Restricted Payment to make Restricted Payments to Holdings), in each
case to the extent necessary to enable Holdings, Daboco and DRI
(i) to pay their overhead expenses to the extent
permitted under the Senior Note Indenture as in effect on the
Closing Date; provided, that the aggregate amount of
Restricted Payments paid by the Borrower pursuant to this
clause (d)(i) in any Fiscal Year shall not exceed $2,000,000;
and
(ii) to pay their respective taxes based on income
and franchise taxes and other similar licensure expenses;
provided, however, that the amount of Restricted Payments
paid pursuant to this clause (d)(ii) to enable Holdings to
pay such taxes and expenses at any time shall not exceed the
lesser of (x) the amount of such taxes and expenses owing by
Holdings at such time for the respective period and (y) the
amount of such taxes and expenses that would be owing by
Daboco and its Subsidiaries on a consolidated basis for such
period if determined without regard to Holdings' ownership of
Daboco; and
(e) so long as (i) no Default or Event of Default shall have
occurred and be continuing on the date such Restricted Payment is
declared or to be made, nor would a Default or an Event of Default
result from the making of such Restricted Payment, (ii) after giving
effect to the making of such Restricted Payment, the Borrower shall be
in pro forma compliance with the covenants set forth in Section 7.2.4
for the most recent fully ended Fiscal Quarter preceding the date of
the making of such Restricted Payment for which the relevant financial
information has been delivered pursuant to clause (b) or (c) of
Section 7.1.1, and (iii) an Authorized Officer of the Borrower shall
have delivered a certificate to the Administrative Agent in form and
substance satisfactory to the Administrative Agent (including a
calculation of the Borrower's compliance with the covenants set forth
in Section 7.2.4 in reasonable detail) certifying as to the accuracy
of subclauses (i) and (ii) above, the Borrower shall be permitted to
make Restricted Payments to Daboco (which shall in turn utilize all of
any such Restricted Payment to make Restricted Payments to Holdings)
and to DRI (which shall in turn utilize all of any such Restricted
Payment to make Restricted Payments to Daboco, which shall in turn
utilize all of any such Restricted Payment to make Restricted Payments
to Holdings), in each case to the extent necessary to enable Holdings
to repurchase, redeem or otherwise acquire or retire for value any
Capital Stock of Holdings, or any warrant, option or other right to
acquire Capital Stock of Holdings, held by any member of management of
Holdings or any of its Subsidiaries pursuant to any management equity
subscription agreement or stock option agreement; provided that the
aggregate price paid for all such repurchased, redeemed, acquired or
retired Capital Stock, warrants, options and other rights shall not
exceed an amount equal to the sum of (1) $1,000,000 in any Fiscal Year
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(with unused amounts in any Fiscal Year being carried forward to
succeeding Fiscal Years subject to a maximum (without giving effect to
the following subclause (2)) of $3,000,000 in any Fiscal Year) plus
(2) the aggregate cash proceeds received by Holdings during such
Fiscal Year from any reissuance of Capital Stock of Holdings, and
warrants, options and other rights to acquire Capital Stock of
Holdings, by Holdings to members of management of Holdings or any of
its Subsidiaries.
SECTION 7.2.7. Capital Expenditures, etc. Each of the Borrower and
each Parent Guarantor will not, and will not permit any of their respective
Subsidiaries to, make or commit to make Capital Expenditures (a) during the
period from the Closing Date through December 31, 1997, except Capital
Expenditures of the Borrower and its Subsidiaries which do not aggregate in
excess of $7,000,000, and (b) in any Fiscal Year, except Capital Expenditures
of the Borrower and its Subsidiaries which do not aggregate in excess of
$12,000,000 in such Fiscal Year; provided, however, that, to the extent the
amount of Capital Expenditures permitted to be made in any Fiscal Year pursuant
to this Section exceeds the aggregate amount of Capital Expenditures actually
made by the Borrower and its Subsidiaries during such Fiscal Year, up to 50% of
such excess amount may be carried forward to (but only to) the next succeeding
Fiscal Year (any such amount to be certified by the Borrower to the Agents in
the Compliance Certificate delivered for the last Fiscal Quarter of such Fiscal
Year), and any such amount carried forward to a succeeding Fiscal Year shall be
deemed to be used prior to the Borrower and its Subsidiaries using the amount
of Capital Expenditures permitted by this Section in such succeeding Fiscal
Year, without giving effect to such carry-forward; provided, further, however,
that the Borrower and its Subsidiaries may make or commit to make Capital
Expenditures subsequent to the Closing Date for the purpose of expanding or
replacing their warehouse facilities in an aggregate amount not to exceed
$2,000,000, which amount shall not be included in calculating Capital
Expenditures permitted to be made or committed to be made pursuant to clause
(a) or (b) above.
SECTION 7.2.8. Consolidation, Merger, etc. Each of the Borrower and
each Parent Guarantor will not, and will not permit any of their respective
Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or
with, any other corporation, or purchase or otherwise acquire all or
substantially all of the assets of any Person (or of any division thereof)
except
(a) any Subsidiary of the Borrower may liquidate or dissolve
voluntarily into, and may merge with and into, the Borrower (so long
as the Borrower is the surviving entity of such combination or merger)
or any other Subsidiary, and the assets or stock of any such
Subsidiary may be purchased or otherwise acquired by the Borrower or
any other Subsidiary; provided, that notwithstanding the above, a
Subsidiary may only liquidate or dissolve into, or merge with and
into, another Subsidiary of the Borrower if, after giving effect to
such combination or merger, the Borrower continues to own (directly or
indirectly), and the Administrative Agent continues to have pledged to
it pursuant to a Pledge Agreement, a percentage of the issued and
outstanding shares of Capital Stock (on a fully diluted basis) of the
Subsidiary surviving such combination or merger that is equal to or in
excess of the percentage of the issued and outstanding shares of
Capital Stock (on a fully diluted basis) of the Subsidiary that does
not survive such combination or merger
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that was (immediately prior to the combination or merger) owned by the
Borrower or pledged to the Administrative Agent; and
(b) so long as no Default has occurred and is continuing or
would occur after giving effect thereto, the Borrower or any of its
Subsidiaries may purchase all or substantially all of the assets of
any Person (or any division thereof) not then a Subsidiary, or acquire
such Person by merger, if permitted (without duplication) pursuant to
Section 7.2.7 or clause (i) of Section 7.2.5.
SECTION 7.2.9. Asset Dispositions, etc. Each of the Borrower and each
Parent Guarantor will not, and will not permit any of their respective
Subsidiaries to, sell, transfer, lease, contribute or otherwise convey, or
grant options, warrants or other rights with respect to, all or any part of its
assets, whether now owned or hereafter acquired (including accounts receivable
and Capital Stock of Subsidiaries) to any Person, unless:
(a) such sale, transfer, lease, contribution or conveyance of
such assets is (i) in the ordinary course of its business (and does
not constitute a sale, transfer, lease, contribution or other
conveyance of all or a substantial part of the Borrower's and its
Subsidiaries' assets, taken as a whole) or is of obsolete or worn out
property, (ii) permitted by Section 7.2.8, or (iii) between the
Borrower and one of its Subsidiary Guarantors or between Subsidiary
Guarantors of the Borrower;
(b) such sale, transfer, lease, contribution or conveyance
consists of the sale by the Borrower of third party prescription
receivables resulting from the sale of pharmaceutical products to
customers covered by third party insurance or payment programs (the
"Prescription Receivables") to Pharmacy Fund, in each case pursuant
to, and in accordance with the terms of the Rapid Remit Program
Documents;
(c) such sale, transfer, lease, contribution or conveyance
constitutes (i) an Investment permitted under Section 7.2.5 or (ii) a
Lien permitted under Section 7.2.3; or
(d) (i) such sale, transfer, lease, contribution or
conveyance of such assets is for fair market value and the
consideration consists of no less than 80% in cash (other than assets
sold, transferred, leased, contributed or conveyed in an individual
amount not to exceed $50,000 and in an aggregate amount not to exceed
$500,000 since the Closing Date), (ii) the Net Disposition Proceeds
received from such assets, together with the Net Disposition Proceeds
of all other assets sold, transferred, leased, contributed or conveyed
pursuant to this clause (d) since the Closing Date, does not exceed
(individually or in the aggregate) $10,000,000 over the term of this
Agreement and (iii) an amount equal to the Net Disposition Proceeds
generated from such sale, transfer, lease, contribution or conveyance
is applied to prepay the Loans pursuant to the terms of Sections 3.1.1
and 3.1.2.
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SECTION 7.2.10. Modification of Certain Agreements. Without the prior
written consent of the Required Lenders, each of the Borrower and each Parent
Guarantor will not, and will not permit any of their respective Subsidiaries
to, consent to any amendment, supplement, amendment and restatement, waiver or
other modification of any of the terms or provisions contained in, or
applicable to, any Material Document or any schedules, exhibits or agreements
related thereto, in each case which does not comply with the requirements set
forth in the proviso to clause (m) of Section 7.2.2 or would adversely affect
the rights or remedies of the Lenders, or the Borrower's, such Parent
Guarantor's or such Subsidiary's ability to perform hereunder or under any Loan
Document.
SECTION 7.2.11. Transactions with Affiliates. Each of the Borrower and
each Parent Guarantor will not, and will not permit any of their respective
Subsidiaries to, enter into, or cause, suffer or permit to exist any
arrangement or contract with any of its other Affiliates unless such
arrangement or contract is fair and equitable to the Borrower, such Parent
Guarantor or such Subsidiary and is an arrangement or contract of the kind
which would be entered into by a prudent Person in the position of the
Borrower, such Parent Guarantor or such Subsidiary with a Person which is not
one of its Affiliates; provided, however that the Borrower, the Parent
Guarantors and their respective Subsidiaries shall be permitted to enter into
and perform their obligations under the Material Documents to which each is a
party as of the Closing Date and arrangements with DLJ and its Affiliates for
underwriting, investment banking and advisory services on usual and customary
terms.
SECTION 7.2.12. Negative Pledges, Restrictive Agreements, etc. Each of
the Borrower and each Parent Guarantor will not, and will not permit any of
their respective Subsidiaries to, enter into any agreement prohibiting
(a) the (i) creation or assumption of any Lien upon its
properties, revenues or assets, whether now owned or hereafter
acquired (other than, in the case of any assets acquired with the
proceeds of any Indebtedness, or subject to Capitalized Lease
Liabilities, permitted under clause (f) of Section 7.2.2, customary
limitations and prohibitions contained in such Indebtedness or
Capitalized Lease), or (ii) ability of the Borrower, any Parent
Guarantor or any other Obligor to amend or otherwise modify this
Agreement or any other Loan Document; or
(b) any Subsidiary from making any payments, directly or
indirectly, to the Borrower by way of dividends, advances, repayments
of loans or advances, reimbursements of management and other
intercompany charges, expenses and accruals or other returns on
investments, or any other agreement or arrangement which restricts the
ability of any such Subsidiary to make any payment, directly or
indirectly, to the Borrower.
SECTION 7.2.13. Stock of Subsidiaries. The Borrower will not permit
any Subsidiary to issue any Capital Stock (whether for value or otherwise) to
any Person other than the Borrower or another Wholly-owned Subsidiary of the
Borrower.
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SECTION 7.2.14. Sale and Leaseback. The Borrower will not, and will
not permit any of its Subsidiaries to, enter into any agreement or arrangement
with any other Person providing for the leasing by the Borrower or any of its
Subsidiaries of real or personal property which has been or is to be sold or
transferred by the Borrower or any of its Subsidiaries to such other Person or
to any other Person to whom funds have been or are to be advanced by such
Person on the security of such property or rental obligations of the Borrower
or any of its Subsidiaries.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following
events or occurrences described in this Section 8.1 shall constitute an "Event
of Default".
SECTION 8.1.1. Non-Payment of Obligations. (a) The Borrower shall
default in the payment or prepayment of any principal of any Loan when due or
any Reimbursement Obligations or any deposit of cash for collateral purposes
pursuant to Section 2.6.2 or Section 2.6.4, as the case may be, or (b) any
Obligor (including the Borrower) shall default (and such default shall continue
unremedied for a period of three Business Days) in the payment when due of any
interest or commitment fee with respect to the Loans or Commitments or of any
other monetary Obligation.
SECTION 8.1.2. Breach of Warranty. Any representation or warranty of
the Borrower or any other Obligor made or deemed to be made by it hereunder or
under any other Loan Document or any other writing or certificate furnished by
or on behalf of the Borrower or any other Obligor to the Agents, the
Documentation Agent, the Issuer, the Arranger or any Lender for the purposes of
or in connection with this Agreement or any such other Loan Document (including
any certificates delivered pursuant to Article V) is or shall be incorrect when
made in any material respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations.
The Borrower or any Parent Guarantor shall default in the due performance and
observance of any of its obligations under Section 7.1.4, 7.1.6(b), 7.1.9,
7.1.10 or 7.2 (other than clause (a) of Section 7.2.1), or any other Obligor
shall default in the performance of any of its obligations in respect of such
Sections as such Sections are incorporated by reference or otherwise in any
Loan Document to which such Obligor is a party.
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations. Any
Obligor shall default in the due performance and observance of any other
agreement contained herein or in any other Loan Document executed by it, and
such default shall continue unremedied for a period of 30 days from the earlier
of the date an Authorized Officer of such Obligor has actual knowledge thereof
and the receipt by such Obligor of written notice thereof from the
Administrative Agent.
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SECTION 8.1.5. Default on Other Indebtedness. A default shall occur
(i) in the payment when due (subject to any applicable grace period), whether
by acceleration or otherwise, of any Indebtedness, other than Indebtedness
described in Section 8.1.1, of the Borrower or any of its Subsidiaries or any
other Obligor having a principal amount, individually or in the aggregate, in
excess of $3,000,000, or (ii) a default shall occur in the performance or
observance of any obligation or condition with respect to such Indebtedness if
the effect of such default is to accelerate the maturity of any such
Indebtedness or such default shall continue unremedied for any applicable
period of time sufficient to permit the holder or holders of such Indebtedness,
or any trustee or agent for such holders, to cause such Indebtedness to become
due and payable prior to its expressed maturity.
SECTION 8.1.6. Judgments. Any judgment or order for the payment of
money in excess of $3,000,000 (not covered by insurance from an insurance
company rated A- or better by A.M. Best Company that is not denying its
liability with respect thereto) shall be rendered against the Borrower or any
of its Subsidiaries or any other Obligor and remain unpaid and either (a)
enforcement proceedings shall have been commenced by any creditor upon such
judgment or order, or (b) there shall be any period of 30 consecutive days
during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect.
SECTION 8.1.7. Pension Plans. Any of the following events shall occur
with respect to any Pension Plan (a) the institution of any steps by the
Borrower, any member of its Controlled Group or any other Person to terminate a
Pension Plan if, as a result of such termination, the Borrower or any such
member could be required to make a contribution to such Pension Plan, or could
reasonably expect to incur a liability or obligation to such Pension Plan, in
excess of $1,000,000, or (b) a contribution failure occurs with respect to any
Pension Plan sufficient to give rise to a Lien under section 302(f) of ERISA.
SECTION 8.1.8. Change in Control. Any Change in Control shall occur.
SECTION 8.1.9. Bankruptcy, Insolvency, etc. The Borrower or any of its
Subsidiaries or any other Obligor shall
(a) become insolvent or generally fail to pay, or admit in
writing its inability or unwillingness to pay, debts as they become
due;
(b) apply for, consent to, or acquiesce in, the appointment
of a trustee, receiver, sequestrator or other custodian for the
Borrower or any of its Subsidiaries or any other Obligor or any
property of any thereof, or make a general assignment for the benefit
of creditors;
(c) in the absence of such application, consent, acquiescence
or assignment, permit or suffer to exist the appointment of a trustee,
receiver, sequestrator or other custodian for the Borrower or any of
its Subsidiaries or any other Obligor or for a substantial part of the
property of any thereof, and such trustee, receiver, sequestrator or
other custodian shall not be discharged within 60 days, provided that
the Borrower, each
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Subsidiary and each other Obligor hereby expressly authorizes the
Agents, the Documentation Agent, the Arranger, the Issuer and each
Lender to appear in any court conducting any relevant proceeding
during such 60-day period to preserve, protect and defend their rights
under the Loan Documents;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution,
winding up or liquidation proceeding, in respect of the Borrower or
any of its Subsidiaries or any other Obligor, and, if any such case or
proceeding is not commenced by the Borrower or such Subsidiary or such
other Obligor, such case or proceeding shall be consented to or
acquiesced in by the Borrower or such Subsidiary or such other Obligor
or shall result in the entry of an order for relief or shall remain
for 60 days undismissed, provided that the Borrower, each Subsidiary
and each other Obligor hereby expressly authorizes the Agents, the
Documentation Agent, the Arranger, the Issuer and each Lender to
appear in any court conducting any such case or proceeding during such
60-day period to preserve, protect and defend their rights under the
Loan Documents; or
(e) take any action (partnership, corporate or otherwise)
authorizing, or in furtherance of, any of the foregoing.
SECTION 8.1.10. Impairment of Security, etc. Any Loan Document, or any
Lien granted thereunder, shall (except in accordance with its terms), in whole
or in part, terminate, cease to be in full force and effect or cease to be the
legally valid, binding and enforceable obligation of any Obligor party thereto;
the Borrower or any other Obligor shall, directly or indirectly, contest in any
manner the effectiveness, validity, binding nature or enforceability thereof;
or any Lien securing any Obligation shall, in whole or in part, cease to be a
perfected first priority Lien, subject only to those exceptions expressly
permitted by the Loan Documents.
SECTION 8.2. Action if Bankruptcy, etc. If any Event of Default
described in clauses (a) through (d) of Section 8.1.9 shall occur, the
Commitments (if not theretofore terminated) shall automatically terminate and
the outstanding principal amount of all outstanding Loans and all other
Obligations (including Reimbursement Obligations) shall automatically be and
become immediately due and payable, without notice or demand and the Borrower
shall automatically and immediately be obligated to deposit with the
Administrative Agent cash collateral in an amount equal to the undrawn amount
of all Letters of Credit outstanding.
SECTION 8.3. Action if Other Event of Default. If any Event of Default
(other than an Event of Default described in clauses (a), through (d) of
Section 8.1.9) shall occur for any reason, whether voluntary or involuntary,
and be continuing, the Administrative Agent, upon the direction of the Required
Lenders, shall by notice to the Borrower declare all or any portion of the
outstanding principal amount of the Loans and other Obligations (including
Reimbursement Obligations) to be due and payable, require the Borrower to
provide cash collateral to be deposited with the Administrative Agent in an
amount equal to the undrawn amount of all Letters of Credit outstanding and/or
declare the Commitments (if not theretofore terminated) to
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be terminated, whereupon the full unpaid amount of such Loans and other
Obligations which shall be so declared due and payable shall be and become
immediately due and payable, without further notice, demand or presentment,
and/or, as the case may be, the Commitments shall terminate and the Borrower
shall deposit with the Administrative Agent cash collateral in an amount equal
to the undrawn amount of all Letters of Credit outstanding.
ARTICLE IX
GUARANTY
SECTION 9.1. Guaranty. Each Parent Guarantor hereby jointly and
severally, absolutely, unconditionally and irrevocably
(a) guarantees the full and punctual payment when due,
whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise, of all Obligations of the Borrower
now or hereafter existing, whether for principal, interest, fees,
expenses or otherwise (including all such amounts which would become
due but for the operation of the automatic stay under Section 362(a)
of the United States Bankruptcy Code, 11 U.S.C. ss.362(a), and the
operation of Sections 502(b) and 506(b) of the United States
Bankruptcy Code, 11 U.S.C. ss.502(b) and ss.506(b)), and
(b) indemnifies and holds harmless each Secured Party and
each holder of a Note for any and all costs and expenses (including
reasonable attorney's fees and expenses) incurred by such Secured
Party or such holder, as the case may be, in enforcing any rights
under the guaranty set forth in this Article IX.
The guaranty set forth in this Article IX constitutes a guaranty of payment
when due and not of collection, and each Parent Guarantor specifically agrees
that it shall not be necessary or required that any Secured Party or any holder
of any Note exercise any right, assert any claim or demand or enforce any
remedy whatsoever against the Borrower or any other Obligor (or any other
Person) before or as a condition to the obligations of each Parent Guarantor
under the guaranty set forth in this Article IX.
SECTION 9.2. Acceleration of Parent Guaranty. Each Parent Guarantor
agrees that upon the occurrence of an Event of Default of the nature set forth
in clauses (a) through (d) of Section 8.1.9, at a time when any of the
Obligations of the Borrower and each other Obligor may not then be due and
payable, then each Parent Guarantor agrees that it will pay to the
Administrative Agent for the account of the Secured Parties forthwith the full
amount which would be payable under the guaranty set forth in this Article IX
by each Parent Guarantor if all such Obligations were then due and payable.
SECTION 9.3. Guaranty Absolute, etc. The guaranty set forth in this
Article IX shall in all respects be a continuing, absolute, unconditional and
irrevocable guaranty of payment, and shall remain in full force and effect
until all Obligations of the Borrower and each other Obligor
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have been paid in full in cash, all obligations of each Parent Guarantor under
the guaranty set forth in this Article IX shall have been paid in full in cash,
all Letters of Credit have been terminated or expired, all Rate Protection
Agreements have been terminated or expired and all Commitments shall have
terminated. Each Parent Guarantor guarantees that the Obligations of the
Borrower will be paid strictly in accordance with the terms of this Agreement
and each other Loan Document under which they arise, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting
any of such terms or the rights of any Secured Party or any holder of any Note
with respect thereto. The liability of each Parent Guarantor under the guaranty
set forth in this Article IX shall be absolute, unconditional and irrevocable
irrespective of:
(a) any lack of validity, legality or enforceability of this
Agreement, any Note or any other Loan Document;
(b) the failure of any Secured Party or any holder of any
Note
(i) to assert any claim or demand or to enforce any
right or remedy against the Borrower, any other Obligor or
any other Person (including any other guarantor (including
any Parent Guarantor)) under the provisions of this
Agreement, any Note, any other Loan Document or otherwise, or
(ii) to exercise any right or remedy against any
other guarantor (including any Parent Guarantor) of, or
collateral securing, any Obligations of the Borrower;
(c) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations of the Borrower,
or any other extension, compromise or renewal of any Obligation of the
Borrower;
(d) any reduction, limitation, impairment or termination of
any Obligations of the Borrower for any reason, including any claim of
waiver, release, surrender, alteration or compromise, and shall not be
subject to (and the each Parent Guarantor hereby waives any right to
or claim of) any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality,
nongenuineness, irregularity, compromise, unenforceability of, or any
other event or occurrence affecting, any Obligations of the Borrower
or otherwise;
(e) any amendment to, rescission, waiver, or other
modification of, or any consent to departure from, any of the terms of
this Agreement, any Note or any other Loan Document;
(f) any addition, exchange, release, surrender or
non-perfection of any collateral, or any amendment to or waiver or
release or addition of, or consent to departure from, any other
guaranty, held by any Secured Party or any holder of any Note securing
any of the Obligations of the Borrower; or
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(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the
Borrower, any surety or any guarantor.
SECTION 9.4. Reinstatement, etc. Each Parent Guarantor agrees that the
guaranty set forth in this Article IX shall continue to be effective or be
reinstated, as the case may be, if at any time any payment (in whole or in
part) of any of the Obligations is rescinded or must otherwise be restored by
any Secured Party or any holder of any Note, upon the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, all as though such payment had not
been made.
SECTION 9.5. Waiver, etc. Each Parent Guarantor hereby waives
promptness, diligence, notice of acceptance and any other notice with respect
to any of the Obligations of the Borrower and the guaranty set forth in this
Article IX and any requirement that the Administrative Agent, any other Secured
Party or any holder of any Note protect, secure, perfect or insure any security
interest or Lien, or any property subject thereto, or exhaust any right or take
any action against the Borrower, any other Obligor or any other Person
(including any other guarantor) or entity or any collateral securing the
Obligations of the Borrower.
SECTION 9.6. Postponement of Subrogation, etc. Each Parent Guarantor
agrees that it will not exercise any rights which it may acquire by way of
rights of subrogation under the guaranty set forth in this Article IX, by any
payment made under the guaranty set forth in this Article IX or otherwise,
until the prior payment in full in cash of all Obligations of the Borrower and
each other Obligor, the termination or expiration of all Letters of Credit, the
termination or expiration of all Rate Protection Agreements and the termination
of all Commitments. Any amount paid to any Parent Guarantor on account of any
such subrogation rights prior to the payment in full in cash of all Obligations
of the Borrower and each other Obligor shall be held in trust for the benefit
of the Secured Parties and each holder of a Note and shall immediately be paid
to the Administrative Agent for the benefit of the Secured Parties and each
holder of a Note and credited and applied against the Obligations of the
Borrower and each other Obligor, whether matured or unmatured, in accordance
with the terms of this Agreement; provided, however, that if
(a) each Guarantor has made payment to the Secured Parties
and each holder of a Note of all or any part of the Obligations of the
Borrower, and
(b) all Obligations of the Borrower and each other Obligor
have been paid in full in cash, all Letters of Credit have been
terminated or expired, all Rate Protection Agreements have been
terminated or expired and all Commitments have been permanently
terminated,
each Secured Party and each holder of a Note agrees that, at any Parent
Guarantor's request, the Administrative Agent, on behalf of the Secured Parties
and the holders of the Notes, will execute and deliver to the applicable Parent
Guarantor appropriate documents (without recourse and without representation or
warranty) necessary to evidence the transfer by subrogation to such Parent
Guarantor of an interest in the Obligations of the Borrower resulting from such
payment by such Parent Guarantor. In furtherance of the foregoing, for so long
as any Obligations or
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Commitments remain outstanding, each Parent Guarantor shall refrain from taking
any action or commencing any proceeding against the Borrower (or its successors
or assigns, whether in connection with a bankruptcy proceeding or otherwise) to
recover any amounts in the respect of payments made under the guaranty set
forth in this Article IX to any Secured Party or any holder of a Note.
SECTION 9.7. Successors, Transferees and Assigns; Transfers of Notes,
etc. The guaranty set forth in this Article IX shall:
(a) be binding upon each Parent Guarantor and its successors,
transferees and assigns; and
(b) inure to the benefit of and be enforceable by the
Administrative Agent and each other Secured Party.
Without limiting the generality of the foregoing clause (b), any Lender may
assign or otherwise transfer (in whole or in part) any Note or Credit Extension
held by it to any other Person or entity, and such other Person or entity shall
thereupon become vested with all rights and benefits in respect thereof granted
to such Lender under any Loan Document (including the guaranty set forth in
this Article IX) or otherwise, subject, however, to any contrary provisions in
such assignment or transfer, and to the provisions of Section 11.11 and Article
X.
ARTICLE X
THE AGENTS
SECTION 10.1. Actions. Each Lender hereby appoints DLJ as its
Syndication Agent and Fleet as its Administrative Agent under and for purposes
of this Agreement, the Notes and each other Loan Document. Each Lender
authorizes the Agents to act on behalf of such Lender under this Agreement, the
Notes and each other Loan Document and, in the absence of other written
instructions from the Required Lenders received from time to time by the Agents
(with respect to which each of the Agents agrees that it will comply, except as
otherwise provided in this Section or as otherwise advised by counsel), to
exercise such powers hereunder and thereunder as are specifically delegated to
or required of the Agents by the terms hereof and thereof, together with such
powers as may be reasonably incidental thereto. Each Lender hereby indemnifies
(which indemnity shall survive any termination of this Agreement) the Agents,
ratably in accordance with their respective Term Loans outstanding and
Commitments (or, if no Term Loans or Commitments are at the time outstanding
and in effect, then ratably in accordance with the principal amount of Term
Loans held by such Lender, and their respective Commitments as in effect in
each case on the date of the termination of this Agreement), from and against
any and all liabilities, obligations, losses, damages, claims, costs or
expenses of any kind or nature whatsoever which may at any time be imposed on,
incurred by, or asserted against, any of the Agents in any way relating to or
arising out of this Agreement, the Notes and any other Loan Document, including
reasonable attorneys' fees, and as to which any Agent is
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not reimbursed by the Borrower or any other Obligor (and without limiting the
obligation of the Borrower or any other Obligor to do so); provided, however,
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, claims, costs or expenses which are
determined by a court of competent jurisdiction in a final proceeding to have
resulted solely from such Agent's gross negligence or willful misconduct. The
Agents shall not be required to take any action hereunder, under the Notes or
under any other Loan Document, or to prosecute or defend any suit in respect of
this Agreement, the Notes or any other Loan Document, unless it is indemnified
hereunder to its satisfaction. If any indemnity in favor of any of the Agents
shall be or become, in such Agent's determination, inadequate, such Agent may
call for additional indemnification from the Lenders and cease to do the acts
indemnified against hereunder until such additional indemnity is given.
SECTION 10.2. Funding Reliance, etc. Unless the Administrative Agent
shall have been notified by telephone, confirmed in writing, by any Lender by
5:00 p.m., New York City time, on the day prior to a Borrowing that such Lender
will not make available the amount which would constitute its Percentage of
such Borrowing on the date specified therefor, the Administrative Agent may
assume that such Lender has made such amount available to the Administrative
Agent and, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If and to the extent that such Lender shall not have made
such amount available to the Administrative Agent, such Lender severally agrees
and the Borrower agrees to repay the Administrative Agent forthwith on demand
such corresponding amount together with interest thereon, for each day from the
date the Administrative Agent made such amount available to the Borrower to the
date such amount is repaid to the Administrative Agent, at the interest rate
applicable at the time to Loans comprising such Borrowing.
SECTION 10.3. Exculpation. None of the Agents, the Swing Line Lender,
the Issuer or the Arranger nor any of their respective directors, officers,
employees or agents shall be liable to any Lender for any action taken or
omitted to be taken by it under this Agreement or any other Loan Document, or
in connection herewith or therewith, except for its own willful misconduct or
gross negligence, nor responsible for any recitals or warranties herein or
therein, nor for the effectiveness, enforceability, validity or due execution
of this Agreement or any other Loan Document, nor for the creation, perfection
or priority of any Liens purported to be created by any of the Loan Documents,
or the validity, genuineness, enforceability, existence, value or sufficiency
of any collateral security, nor to make any inquiry respecting the performance
by the Borrower of its obligations hereunder or under any other Loan Document.
Any such inquiry which may be made by any Agent, the Swing Line Lender or the
Issuer shall not obligate it to make any further inquiry or to take any action.
The Agents, the Swing Line Lender and the Issuer shall be entitled to rely upon
advice of counsel concerning legal matters and upon any notice, consent,
certificate, statement or writing which the Agents, the Swing Line Lender or
the Issuer, as applicable, believe to be genuine and to have been presented by
a proper Person.
SECTION 10.4. Successor. The Syndication Agent may resign as such upon
one Business Day's notice to the Borrower and the Administrative Agent. The
Administrative Agent may resign as such at any time upon at least 30 days'
prior notice to the Borrower and all Lenders. If the Administrative Agent at
any time shall resign, the Required Lenders may, with
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the prior consent of the Borrower (which consent shall not be unreasonably
withheld), appoint another Lender as a successor Administrative Agent which
shall thereupon become the Administrative Agent hereunder. If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be one of the Lenders or a commercial banking
institution organized under the laws of the United States or a United States
branch or agency of a commercial banking institution, and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall be entitled to receive from
the retiring Administrative Agent such documents of transfer and assignment as
such successor Administrative Agent may reasonably request, and shall thereupon
succeed to and become vested with all rights, powers, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations under this Agreement. After any
retiring Administrative Agent's resignation hereunder as the Administrative
Agent, the provisions of (i) this Article X shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was the Administrative
Agent under this Agreement, and (ii) Section 11.3 and Section 11.4 shall
continue to inure to its benefit.
SECTION 10.5. Credit Extensions by each Agent. Each Agent, the Swing
Line Lender and the Issuer shall have the same rights and powers with respect
to (x) (i) in the case of the Agents and the Swing Line Lender, the Credit
Extensions made by it or any of its Affiliates and (ii) in the case of the
Issuer, the Loans made by it or any of its Affiliates, and (y) the Notes held
by such Agent, the Swing Line Lender, the Issuer or any of their respective
Affiliates as any other Lender and may exercise the same as if it were not an
Agent or the Issuer. Each Agent, the Swing Line Lender, the Issuer and each and
their respective Affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Borrower or any Subsidiary or
Affiliate of the Borrower as if such Agent, the Swing Line Lender or Issuer
were not an Agent, the Swing Line Lender or the Issuer hereunder.
SECTION 10.6. Credit Decisions. Each Lender acknowledges that it has,
independently of each Agent, the Documentation Agent, the Arranger, the Swing
Line Lender, the Issuer and each other Lender, and based on such Lender's
review of the financial information of the Borrower, this Agreement, the other
Loan Documents (the terms and provisions of which being satisfactory to such
Lender) and such other documents, information and investigations as such Lender
has deemed appropriate, made its own credit decision to extend its Commitments.
Each Lender also acknowledges that it will, independently of each Agent, the
Documentation Agent, the Arranger, the Swing Line Lender, the Issuer and each
other Lender, and based on such other documents, information and investigations
as it shall deem appropriate at any time, continue to make its own credit
decisions as to exercising or not exercising from time to time any rights and
privileges available to it under this Agreement or any other Loan Document.
SECTION 10.7. Copies, etc. The Administrative Agent shall give prompt
notice to each Lender and the Issuer of each notice or request required or
permitted to be given to the
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Administrative Agent by the Borrower pursuant to the terms of this Agreement
(unless concurrently delivered to the Lenders and the Issuer by the Borrower).
The Administrative Agent will distribute to each Lender and the Issuer each
document or instrument received for such Lender's or the Issuers's account and
copies of all other communications received by the Administrative Agent from
the Borrower for distribution to the Lenders and/or the Issuer by the
Administrative Agent in accordance with the terms of this Agreement.
SECTION 10.8. The Swing Line Lender, the Issuer, the Documentation
Agent, the Syndication Agent and the Administrative Agent. Notwithstanding
anything else to the contrary contained in this Agreement or any other Loan
Document, the Swing Line Lender, the Issuer, the Documentation Agent and the
Agents, in their respective capacities as such, each in such capacity, shall
have no duties or responsibilities under this Agreement or any other Loan
Document nor any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or otherwise exist against the Swing Line
Lender, the Issuer, the Documentation Agent or any Agent, as applicable, in
such capacity except as are explicitly set forth herein or in the other Loan
Documents.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Waivers, Amendments, etc. The provisions of this
Agreement and of each other Loan Document may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing and
consented to by the Borrower and each Obligor party thereto and by the Required
Lenders; provided, however, that no such amendment, modification or waiver
which would:
(a) modify any requirement hereunder that any particular
action be taken by all the Lenders or by the Required Lenders shall be
effective unless consented to by each Lender;
(b) modify this Section 11.1, or clause (a) of Section 11.10,
change the definition of "Required Lenders", increase any Commitment
Amount or the Percentage of any Lender, reduce, or extend the due date
for, any fees described in Section 3.3 (other than any fee referred to
in Section 3.3.2), release any Guarantor from its obligations under
any Guaranty, or release all or substantially all of the collateral
security (except in each case as otherwise specifically provided in
this Agreement, any such Guaranty, a Security Agreement or a Pledge
Agreement) or extend any Commitment Termination Date shall be made
without the consent of each Lender adversely affected thereby;
(c) extend the due date for, or reduce the amount of, (i) any
scheduled repayment or prepayment of principal of or interest on any
Loan (or reduce the principal amount of or rate of interest on any
Loan) or (ii) any repayment of any Reimbursement Obligation
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(or reduce the amount of or rate of interest on any Reimbursement
Obligation) shall be made without the consent of the holder of the
Note evidencing such Loan or, in the case of a Reimbursement
Obligation, the Issuer owed, and those Lenders participating in, such
Reimbursement Obligation;
(d) affect adversely the interests, rights or obligations of
any Agent, the Swing Line Lender, the Issuer or the Arranger (in its
capacity as Agent, the Swing Line Lender, the Issuer or the Arranger),
unless consented to by such Agent, the Swing Line Lender, the Issuer
or the Arranger, as the case may be; or
(e) have the effect (either immediately or at some later
time) of enabling the Borrower to satisfy a condition precedent to the
making of a Revolving Loan, the Swing Line Loan or the issuance of a
Letter of Credit without the consent of Lenders holding at least 51%
of the Revolving Loan Commitments; or
(f) amend, modify or waive the provisions of clause (a)(i) of
Section 3.1.1 or clause (b) of Section 3.1.2 or effect any amendment,
modification or waiver that by its terms adversely affects the Lenders
participating in any Tranche differently from those of Lenders
participating in other Tranches, without the consent of the holders of
the Notes evidencing at least 51% of the aggregate amount of Loans
outstanding under each Tranche affected by such modification, or, in
the case of a modification affecting the Revolving Loan Commitment
Amount, the Lenders holding at least 51% of the Revolving Loan
Commitments.
No failure or delay on the part of any Agent, the Issuer, any Lender or the
holder of any Note in exercising any power or right under this Agreement or any
other Loan Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No notice to or
demand on the Borrower in any case shall entitle it to any notice or demand in
similar or other circumstances. No waiver or approval by any Agent, the Issuer,
any Lender or the holder of any Note under this Agreement or any other Loan
Document shall, except as may be otherwise stated in such waiver or approval,
be applicable to subsequent transactions. No waiver or approval hereunder shall
require any similar or dissimilar waiver or approval thereafter to be granted
hereunder.
SECTION 11.2. Notices. All notices and other communications provided
to any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed, delivered or transmitted to such party
at its address or facsimile number set forth on its signature page hereto or on
Schedule II hereto or, in the case of a Lender that becomes a party hereto
after the date hereof, as set forth in the Lender Assignment Agreement pursuant
to which such Lender becomes a Lender hereunder or at such other address or
facsimile number as may be designated by such party in a notice to the other
parties. Any notice, if mailed and properly addressed with postage prepaid or
if properly addressed and sent by pre-paid courier service, shall be deemed
given when received; any notice, if transmitted by facsimile, shall be deemed
given when transmitted (and electronic confirmation of receipt thereof has been
received).
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SECTION 11.3. Payment of Costs and Expenses. The Borrower agrees to
pay on demand all reasonable expenses of each of the Agents and the Arranger
(including the reasonable fees and out-of-pocket expenses of counsel to the
Agents and the Arranger and of local or foreign counsel, if any, who may be
retained by counsel to the Agents) in connection with
(a) the syndication by the Syndication Agent and the Arranger
of the Loans, the negotiation, preparation, execution and delivery of
this Agreement and of each other Loan Document, including schedules
and exhibits, and any amendments, waivers, consents, supplements or
other modifications to this Agreement or any other Loan Document as
may from time to time hereafter be required, whether or not the
transactions contemplated hereby are consummated;
(b) the filing, recording, refiling or rerecording of each
Pledge Agreement and each Security Agreement and/or any Uniform
Commercial Code financing statements relating thereto and all
amendments, supplements and modifications to any thereof and any and
all other documents or instruments of further assurance required to be
filed or recorded or refiled or rerecorded by the terms hereof or of
such Pledge Agreement, Security Agreement or Uniform Commercial Code
financial statements; and
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
The Borrower further agrees to pay, and to save the Agents, the Documentation
Agent, the Arranger, the Issuer and the Lenders harmless from all liability
for, any stamp or other similar taxes which may be payable in connection with
the execution or delivery of this Agreement, the Credit Extensions made
hereunder or the issuance of the Notes or Letters of Credit or any other Loan
Documents. The Borrower also agrees to reimburse each Agent, the Documentation
Agent, the Arranger, the Issuer and each Lender upon demand for all reasonable
out-of-pocket expenses (including reasonable attorneys' fees and legal
expenses) incurred by such Agent, the Documentation Agent, the Arranger, the
Issuer or such Lender in connection with (x) the negotiation of any
restructuring or "work-out", whether or not consummated, of any Obligations and
(y) the enforcement of any Obligations.
SECTION 11.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitments,
the Borrower hereby, to the fullest extent permitted under applicable law,
indemnifies, exonerates and holds each Agent, the Documentation Agent, the
Arranger, the Issuer, and each Lender and each of their respective Affiliates,
and each of their respective partners, officers, directors, trustees, employees
and agents, and each other Person controlling any of the foregoing within the
meaning of either Section 15 of the Securities Act of 1933, as amended, or
Section 20 of the Securities Exchange Act of 1934, as amended (collectively,
the "Indemnified Parties"), free and harmless from and against any and all
actions, causes of action, suits, losses, costs, liabilities and damages, and
expenses actually incurred in connection therewith (irrespective of whether any
such Indemnified Party is a party to the action for which indemnification
hereunder is sought),
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including reasonable attorneys' fees and disbursements (collectively, the
"Indemnified Liabilities"), incurred by the Indemnified Parties or any of them
as a result of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Credit
Extension;
(b) the entering into and performance of this Agreement and
any other Loan Document by any of the Indemnified Parties (including
any action brought by or on behalf of the Borrower as the result of
any determination by any Lender to make any Credit Extension
hereunder);
(c) any investigation, litigation or proceeding related to
any acquisition or proposed acquisition by the Borrower or any of its
Subsidiaries of all or any portion of the stock or assets of any
Person, whether or not such Agent, the Documentation Agent, the
Issuer, the Arranger or such Lender is party thereto;
(d) any investigation, litigation or proceeding related to
any environmental cleanup, audit, compliance or other matter relating
to the Borrower's or any of its Subsidiaries' compliance with or
liability under Environmental Law or the Release by the Borrower or
any of its Subsidiaries of any Hazardous Material; or
(e) the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission or release from, any real
property owned or operated by the Borrower or any Subsidiary thereof
of any Hazardous Material present on or under such property in a
manner giving rise to liability at or prior to the time the Borrower
or such Subsidiary owned or operated such property (including any
losses, liabilities, damages, injuries, costs, expenses or claims
asserted or arising under any Environmental Law), regardless of
whether caused by, or within the control of, the Borrower or such
Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's
gross negligence or willful misconduct. The Borrower and its permitted
successors and assigns hereby waive, release and agree not to make any claim,
or bring any cost recovery action against, any Agent, the Documentation Agent,
the Issuer, the Arranger or any Lender under CERCLA or any state equivalent, or
any similar law now existing or hereafter enacted, except to the extent arising
out of the gross negligence or willful misconduct of any Indemnified Party. It
is expressly understood and agreed that to the extent that any of such Persons
is strictly liable under any Environmental Laws, the Borrower's obligation to
such Person under this indemnity shall likewise be without regard to fault on
the part of the Borrower, to the extent permitted under applicable law, with
respect to the violation or condition which results in liability of such
Person. If and to the extent that the foregoing undertaking may be
unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.
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SECTION 11.5. Survival. The obligations of the Borrower under Sections
2.6.7(a)(ii), 4.3, 4.4, 4.5, 4.6, 11.3 and 11.4, the obligations of each Parent
Guarantor under Section 9.1(b) and the obligations of the Lenders under
Sections 4.8 and 10.1, shall in each case survive any assignment or
participation pursuant to Section 11.11, any termination of this Agreement, the
payment in full of all Obligations and the termination of all Commitments. The
representations and warranties made by the Borrower and each other Obligor in
this Agreement and in each other Loan Document shall survive the execution and
delivery of this Agreement and each such other Loan Document.
SECTION 11.6. Severability. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such provision and such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 11.7. Headings. The various headings of this Agreement and of
each other Loan Document are inserted for convenience only and shall not affect
the meaning or interpretation of this Agreement or such other Loan Document or
any provisions hereof or thereof.
SECTION 11.8. Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each
of which shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
SECTION 11.9. Governing Law; Entire Agreement. THIS AGREEMENT, THE
NOTES AND, EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED THEREIN, EACH
OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. This Agreement, the
Notes and the other Loan Documents constitute the entire understanding among
the parties hereto with respect to the subject matter hereof and supersede any
prior agreements, written or oral, with respect thereto.
SECTION 11.10. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that (a) the Borrower may not assign
or transfer its rights or obligations hereunder without the prior written
consent of each of the Agents and all Lenders, and (b) the rights of sale,
assignment and transfer of the Lenders are subject to Section 11.11.
SECTION 11.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes. Each Lender may assign, or sell participations in, its Loans
and Commitments to one or more other Persons, on a non pro rata basis (except
as provided below), in accordance with this Section 11.11.
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SECTION 11.11.1. Assignments. Any Lender (the "Assignor Lender"),
(a) with the written consents of the Borrower, the Agents and
(in the case of any assignment of participations in Letters of Credit
or Revolving Loan Commitments) the Issuer (which consents shall not be
unreasonably delayed or withheld and which consents of the Agents and
the Issuer shall not be required in the case of assignments made by or
to DLJ or any of its Affiliates and which consent of the Borrower
shall not be required if a Default or an Event of Default shall have
occurred and be continuing), may at any time assign and delegate to
one or more commercial banks or other financial institutions or funds
which are regularly engaged in making, purchasing or investing in
loans or securities, and
(b) with notice to the Borrower, the Agents, and (in the case
of any assignment of participations in Letters of Credit or Revolving
Loan Commitments) the Issuer, but without the consent of the Borrower,
the Agents or the Issuer, may assign and delegate to any of its
Affiliates or Related Funds or to any other Lender
(each Person described in either of the foregoing clauses as being the Person
to whom such assignment and delegation is to be made, being hereinafter
referred to as an "Assignee Lender"), all or any fraction of such Lender's
total Loans, participations in Letters of Credit and Letter of Credit
Outstandings with respect thereto and Commitments (which assignment and
delegation shall be, as among Revolving Loan Commitments, Revolving Loans and
participations in Letters of Credit, of a constant, and not a varying,
percentage) (the "Assigned Amount") in a minimum aggregate amount of (i)
$1,000,000 in the case of an assignment to an existing Lender or an Affiliate
or Related Fund thereof and $5,000,000 in the case of an assignment to an
Assignee Lender that is not an existing Lender or an Affiliate or Related Fund
thereof or (ii) the then remaining amount of such Lender's Loans and
Commitments; provided, however, that any such Assignee Lender will comply, if
applicable, with the provisions contained in Section 4.6 and the Borrower, each
other Obligor, the Agents and the Issuer shall be entitled to continue to deal
solely and directly with such Assignor Lender in connection with the interests
so assigned and delegated to an Assignee Lender until
(c) written notice of such assignment and delegation,
together with payment instructions, addresses and related information
with respect to such Assignee Lender, shall have been given to the
Borrower and the Agents by such Assignor Lender and such Assignee
Lender;
(d) such Assignee Lender shall have executed and delivered to
the Borrower and the Agents a Lender Assignment Agreement, accepted by
the Agents;
(e) the processing fees described below shall have been
paid; and
(f) the Administrative Agent shall have registered such
assignment and delegation in the Register pursuant to clause (b) of
Section 2.7.
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From and after the date that the Agents accept such Lender Assignment Agreement
and such assignment and delegation is registered in the Register pursuant to
clause (b) of Section 2.7, (i) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (ii)
the Assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and under the other
Loan Documents. Subject to the provisions of Section 2.7, within ten Business
Days after its receipt of notice that the Agent has received an executed Lender
Assignment Agreement, the Borrower shall execute and deliver to the
Administrative Agent (for delivery to the relevant Assignee Lender) new Notes
evidencing such Assignee Lender's assigned Loans and Commitments and, if the
Assignor Lender has retained Loans and Commitments hereunder, replacement Notes
in the principal amount of the Loans and Commitments retained by the Assignor
Lender hereunder (such Notes to be in exchange for, but not in payment of,
those Notes then held by such Assignor Lender). Each such Note requested shall
be dated the date of the predecessor Notes, if any. The Assignor Lender shall
xxxx such predecessor Notes "exchanged" and deliver them to the Borrower.
Unless otherwise specified in the Lender Assignment Agreement, interest and
fees in respect of the Assigned Amount that (A) have accrued prior to the date
of such assignment shall be for the account of the Assignor Lender and (B)
accrue on and subsequent to the date of such assignment shall be for the
account of the Assignee Lender. Accrued interest and fees shall be paid at the
same time or times provided in this Agreement. Such Assignor Lender or such
Assignee Lender (unless the Assignor Lender or the Assignee Lender is DLJ or
any of its Affiliates) must also pay a processing fee to the Administrative
Agent upon delivery of any Lender Assignment Agreement in the amount of $3,500,
unless such assignment and delegation is by a Lender to its Affiliate or if
such assignment and delegation consists of a pledge by a Lender to a Federal
Reserve Bank (or in the case of a Lender that is an investment fund, to the
trustee under the indenture to which such fund is a party), as provided below
or is otherwise consented to by the Administrative Agent. Any attempted
assignment and delegation not made in accordance with this Section 11.11.1
shall be null and void. Nothing contained in this Section 11.11.1 shall prevent
or prohibit any Lender from pledging its rights (but not its obligations to
make Loans or participate in Letters of Credit or Letter of Credit
Outstandings) under this Agreement and/or its Loans and/or its Notes hereunder
(i) to a Federal Reserve Bank in support of borrowings made by such Lender from
such Federal Reserve Bank, or (ii) in the case of a Lender that is an
investment fund, to the trustee under the indenture to which such fund is a
party in support of its obligations to such trustee, in either case without
notice to or consent of the Borrower or the Agents; provided, however, that (A)
such Lender shall remain a "Lender" under this Agreement and shall continue to
be bound by the terms and conditions set forth in this Agreement and the other
Loan Documents, and (B) any assignment by such trustee shall be subject to the
provisions of clause (a) of this Section 11.11.1. In the event that S&P,
Xxxxx'x or Xxxxxxxx'x BankWatch (or InsuranceWatch Ratings Service, in the case
of Lenders that are insurance companies (or Best's Insurance Reports, if such
insurance company is not rated by Insurance Watch Ratings Service)) shall,
after the date that any Lender with a Commitment to make Revolving Loans or
participate in Letters of Credit becomes a Lender, downgrade the long-term
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certificate of deposit rating or long-term senior unsecured debt rating of such
Lender, and the resulting rating shall be below BBB-, Baa3 or C (or BB, in the
case of Lender that is an insurance company (or B, in the case of an insurance
company not rated by InsuranceWatch Ratings Service)) respectively, then the
Issuer or the Borrower (with the consent of the Agents and the Issuer) shall
have the right, but not the obligation, upon notice to such Lender and the
Agents, to replace such Lender with an Assignee Lender in accordance with and
subject to the restrictions contained in this Section, and such Lender hereby
agrees to transfer and assign without recourse (in accordance with and subject
to the restrictions contained in this Section) all its interests, rights and
obligations in respect of its Revolving Loan Commitment under this Agreement to
such Assignee Lender; provided, however, that (i) no such assignment shall
conflict with any law, rule and regulation or order of any governmental
authority and (ii) such Assignee Lender shall pay to such Lender in immediately
available funds on the date of such assignment the principal of and interest
and fees (if any) accrued to the date of payment on the Loans made, and Letters
of Credit participated in, by such Lender hereunder and (iii) the Borrower
shall have paid such Lender all other amounts accrued for such Lender's account
or owed to it hereunder or under any other Loan Document.
SECTION 11.11.2. Participations. Any Lender may at any time sell to
one or more commercial banks or other financial institution (each such
commercial bank and other financial institution being herein called a
"Participant") participating interests in any of the Loans, Commitments,
participations in Letters of Credit and Letters of Credit Outstandings or other
interests of such Lender hereunder; provided, however, that
(a) no participation contemplated in this Section shall
relieve such Lender from its Commitments or its other obligations
hereunder or under any other Loan Document;
(b) such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations;
(c) the Borrower and each other Obligor, the Agents and the
Issuer shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement and each of the other Loan Documents;
(d) no Participant, unless such Participant is an Affiliate
or Related Fund of such Lender, or is itself a Lender, shall be
entitled to require such Lender to take or refrain from taking any
action hereunder or under any other Loan Document, except that such
Lender may agree with any Participant that such Lender will not,
without such Participant's consent, agree to (i) any reduction in the
interest rate or amount of fees that such Participant is otherwise
entitled to, (ii) a decrease in the principal amount, or an extension
of the final Stated Maturity Date, of any Loan in which such
Participant has purchased a participating interest or (iii) a release
of all or substantially all of the collateral security under the Loan
Documents or any Guarantor under any Guaranty, in each case except as
otherwise specifically provided in a Loan Document; and
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(e) the Borrower shall not be required to pay any amount
under Sections 4.3, 4.4, 4.5, 4.6, 11.3 and 11.4 that is greater than
the amount which it would have been required to pay had no
participating interest been sold.
The Borrower acknowledges and agrees, subject to clause (e) above, that, to the
fullest extent permitted under applicable law, each Participant, for purposes
of Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 11.3 and 11.4, shall be considered a
Lender.
SECTION 11.12. Other Transactions. Nothing contained herein shall
preclude any Agent, the Documentation Agent, the Issuer, the Arranger or any
other Lender from engaging in any transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with the Borrower or
any of its Affiliates in which the Borrower or such Affiliate is not restricted
hereby from engaging with any other Person.
SECTION 11.13. Independence of Covenants. All covenants contained in
this Agreement and each other Loan Document shall be given independent effect
such that, in the event a particular action or condition is not permitted by
any of such covenants, the fact that it would be permitted by an exception to,
or be otherwise within the limitations of, another covenant shall not, unless
expressly so provided in such first covenant, avoid the occurrence of a Default
or an Event of Default if such action is taken or such condition exists.
SECTION 11.14. Confidentiality. The Agents, the Documentation Agent,
the Issuer, the Arranger and the Lenders shall hold all non-public information
obtained pursuant to or in connection with this Agreement or obtained by them
based on a review of the books and records of Holdings or any of its
Subsidiaries in accordance with their customary procedures for handling
confidential information of this nature, but may make disclosure to any of
their examiners, regulators (including the National Association of Insurance
Commissioners), Affiliates, outside auditors, counsel and other professional
advisors in connection with this Agreement or as reasonably required by any
potential bona fide transferee, participant or assignee, or in connection with
the exercise of remedies under a Loan Document, or as requested by any
governmental agency or representative thereof or pursuant to legal process;
provided, however, that
(a) unless specifically prohibited by applicable law or court
order, each Agent, the Documentation Agent, the Issuer, the Arranger
and each Lender shall promptly notify the Borrower of any request by
any governmental agency or representative thereof (other than any such
request in connection with an examination of the financial condition
of such Agent, the Documentation Agent, the Issuer, Arranger and
Lender by such governmental agency) for disclosure of any such
non-public information and, where practicable, prior to disclosure of
such information;
(b) prior to any such disclosure pursuant to this Section
11.14, each Agent, the Documentation Agent, the Issuer, the Arranger
and each Lender shall require any such bona fide transferee,
participant and assignee receiving a disclosure of non-public
information to agree, for the benefit of Holdings and its
Subsidiaries, in writing
-103-
(i) to be bound by this Section 11.14; and
(ii) to require such Person to require any other
Person to whom such Person discloses such non-public
information to be similarly bound by this Section 11.14;
(c) disclosure may, with the consent of the Agents and the
Borrower, be made by any Lender to any direct or indirect contractual
counterparties of such Lender in swap agreements or such contractual
counterparties' professional advisors; provided that such contractual
counterparty or professional advisor agrees in writing to keep such
information confidential to the same extent required of the Lenders
hereunder; and
(d) except as may be required by an order of a court of
competent jurisdiction and to the extent set forth therein, no Lender
shall be obligated or required to return any materials furnished by
the Borrower or any Subsidiary.
SECTION 11.15. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE
DOCUMENTATION AGENT, THE ARRANGER, THE LENDERS, THE ISSUER, THE BORROWER OR ANY
PARENT GUARANTOR RELATING THERETO SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY
(TO THE EXTENT PERMITTED UNDER APPLICABLE LAW) IN THE COURTS OF THE STATE OF
NEW YORK, OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK, IN EACH CASE LOCATED IN XXX XXXX XXXXXX XX XXX XXXXX XX XXX XXXX;
PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR
OTHER PROPERTY MAY BE BROUGHT, AT THE AGENTS' OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE BORROWER
AND EACH PARENT GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, AND OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE LOCATED IN
NEW YORK COUNTY OF THE STATE OF NEW YORK, FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY
JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. THE BORROWER AND
EACH PARENT GUARANTOR IRREVOCABLY CONSENT TO THE SERVICE OF PROCESS BY
REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE
STATE OF NEW YORK. THE BORROWER AND EACH PARENT GUARANTOR HEREBY EXPRESSLY AND
IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
ANY OF THEM MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH
LITIGATION BROUGHT IN ANY SUCH
-104-
COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE BORROWER OR ANY PARENT
GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OF FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, THE BORROWER AND EACH PARENT GUARANTOR HEREBY
IRREVOCABLY WAIVE (TO THE EXTENT PERMITTED UNDER APPLICABLE LAW) SUCH IMMUNITY
IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
SECTION 11.16. Waiver of Jury Trial. THE AGENTS, THE DOCUMENTATION
AGENT, THE ARRANGER, THE ISSUER, THE LENDERS, THE BORROWER AND THE PARENT
GUARANTORS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS
THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL
OR WRITTEN) OR ACTIONS OF THE AGENTS, THE DOCUMENTATION AGENT, THE ARRANGER,
THE LENDERS, THE BORROWER OR THE PARENT GUARANTORS RELATING THERETO. THE
BORROWER AND THE PARENT GUARANTORS ACKNOWLEDGE AND AGREE THAT EACH SUCH PERSON
HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH
OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH SUCH PERSON IS A PARTY)
AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENTS, THE
DOCUMENTATION AGENT, THE ARRANGER, THE ISSUER AND THE LENDERS ENTERING INTO
THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
-105-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the
day and year first above written.
BORROWER:
XXXXX XXXXX
By Daboco Inc., a general partner
By /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Title: Chief Financial Officer
By Xxxxx Xxxxx Inc., a general partner
By /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Title: Chief Financial Officer
PARENT GUARANTORS:
XXXXX XXXXX HOLDING CORP.
By /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Title: Chief Financial Officer
DABOCO INC.
By /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Title: Chief Financial Officer
XXXXX XXXXX INC.
By /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Title: Chief Financial Officer
-106-
AGENTS:
DLJ CAPITAL FUNDING, INC., as the
Syndication Agent
By /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Title: Xxxxxx X. Xxxxxxxx
Managing Director
FLEET NATIONAL BANK, as the
Administrative Agent
By /s/ Authorized Signatory
--------------------------------------
Title: Managing Director
CREDIT LYONNAIS NEW YORK
BRANCH, as the Documentation Agent
By /s/ Authorized Signatory
--------------------------------------
Title:
-107-
LENDERS:
DLJ CAPITAL FUNDING, INC.
By /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Title: Xxxxxx X. Xxxxxxxx
Managing Director
FLEET NATIONAL BANK
By
--------------------------------------
Title: Managing Director
CREDIT LYONNAIS NEW YORK
BRANCH
By
--------------------------------------
Title:
-108-
SCHEDULE I
ITEM 6.6 - MATERIAL ADVERSE CHANGE
1. Reduction in net operating loss carry forward occurring as a result of the
recapitalization of Xxxxx Xxxxx Holding Corp. on June 18, 1997, pursuant to that
certain Recapitalization Agreement, dated from May 30, 1997, between and among
the parties set forth therein.
ITEM 6.7 - LITIGATION
1. Claim of Xxxx Xxxxxx. Xxxx Xxxxxx, a former Assistant Manager, filed a
complaint on or about October 17, 1996, against Xxxxx Xxxxx in the Southern
District of New York case number 96 CV 7870. Xx. Xxxxxx alleges that Xxxxx
Xxxxx discriminated against her on the basis of race, national origin, and
disability. She has claimed unspecified compensatory damages and punitive
damages. The case is currently being defended by the Company's insurer.
2. Claim of Valentine Xxxxxx. Valentine Xxxxxx, an AIDS patient, claims
that a Xxxxx Xxxxx pharmacy filled her prescription incorrectly by giving
her a dosage lower than the prescribed amount. Xxxxx Xxxxx has received a
letter, dated April 1, 1997, from her lawyer making no specific claim for
damages but, to date, knows of no formal claim which has been filed.
2
ITEM 6.8 - EXISTING SUBSIDIARIES
NONE
3
ITEM 6.9 - PROPERTIES
Xxxxx Xxxxx currently leases the following properties:
New York
0 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
World Trade Center
New York, New York
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
000-000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
0
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx
000-000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
5
1146-1150 Avenue of the Americas
New York, New York
1 Port Authority
New York, New York
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxx 000xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
6
000-000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00-00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
000-000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
000-000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Pennsylvania Station
New York, New York
0000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxx Xxxxxxx Xxxx
Xxxxx, Xxx Xxxx
000 Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxx Xxxx
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx
7
000 Xxxxxxxx
Xxxxxxxx, Xxx Xxxx
00 Xxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx
00-00 Xxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx
0000 Xxxxxxxx
Xxxxxx, Xxx Xxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00-00 Xxxxx Xxxxxx (warehouse facility)
Maspeth, New York
1185 Avenue of the Americas
New York, New York
0000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00 Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx
000 Xxxxx Xxxxxx (xxxxxxxxx xxxxxxxxxxxx)
Xxx Xxxx, Xxx Xxxx
New Jersey
000 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx
Xxxxx Read currently subleases the following properties:
8
New York
Sublease Agreement between Fitness Assessment and Prescription Inc. (D/B/A
Equinox Fitness Club), as Sub-Lessee, and Xxxxx Xxxxx, as Sub-Lessor, for the
portion of Ground Floor and Basement space at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
for the term February 1, 1995 to May 25, 2014.
Sublease Agreement between Jackpot Realty, Inc., as Sub-Lessee, and Xxxxx
Xxxxx, as Sub-Lessor, for the portion of Basement space at 000 Xxxxxx Xxxxxx,
Xxxxxxxx, New York, for the term January 1, 1996 to November 30, 2000.
Xxxxx Xxxxx currently owns the following properties:
New York
*Xxxxx Xxxxx Warehouse
00-00 00xx Xxxxx
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
*A mortgage relating to this property is to be delivered pursuant to
Section 5.1.7 of the Credit Agreement.
9
ITEM 6.11 - EMPLOYEE BENEFIT PLANS
WELFARE PLANS
1. Xxxxx Xxxxx Medical Plan.
2. Xxxxx Xxxxx Flexible Compensation Plan.
3. Xxxxx Xxxxx Life Insurance Plan.
SEVERANCE ARRANGEMENT
1. Under his Employment Agreement, Xxxx Xxxx is eligible for certain
severance payments, SERP benefits and other employee benefits.
2. The following employees are entitled to certain severance payments:
Xxxxxxx Xxxxxxx, Xxx Xxxxx, Xxxx Xxxxxxxxxxx, Xxxxx XxXxxxx, Xxxxx
Xxxxxxxxx and Xxxxx Xxxxxx.
3. Under his Termination Agreement, dated as of June 18, 1997, Xxxxx Xxxxx
agreed to terminate any rights he possessed under a certain Executive
Stock Agreement, dated as of January 31, 1997, between Xxxxx Xxxxx and
Holdings.
4. Under his Option Repurchase and Cancellation Agreement, dated as of
June 18, 1997, Xxxxx Xxxxxx sold Holdings the portion of his options that
vested upon the consummation of a sale of Holdings.
10
ITEM 6.12 - ENVIRONMENTAL MATTERS
None
11
ITEM 6.16(c) - PHARMACEUTICAL LIABILITIES
None.
12
ITEM 7.2.2(b) - INDEBTEDNESS TO BE PAID
1. $81,769,393.90 under that certain Credit Agreement, dated as of
September 24, 1992, among Daboco Inc., Xxxxx Xxxxx Inc., Xxxxx Xxxxx,
the various lending institutions named therein and Bankers Trust Company,
as Agent, as amended from time to time.
13
ITEM 7.2.2(c) - ONGOING INDEBTEDNESS
1. $123,380,000 in aggregate principal amount at maturity of 15% Senior
Subordinated Zero Coupon Notes due 2004 of Holdings.
2. $90,000,000 in aggregate principal amount of 12% Senior Notes due 2002 of
the Borrower.
3. $125,000 Letter of Credit issued by Bankers Trust, L/C No S-07406 to Lefrak
SBN to secure lease payments.
4. $107,500 Letter of Credit issued by Bankers Trust, L/C No. S-11868 to SIBA
R.E. to secure lease payments.
5. $50,000 Letter of Credit issued by Bankers Trust, L/C No. S-09149 to
International Fidelity Insurance.
6. $37,500 Letter of Credit issued by Chase Manhattan Bank, L/C No. T-240153
to C.S.C. Fulton Associates to secure lease payments.
7. $64,146 Letter of Credit issued by Chase Manhattan Bank, L/C No. L-275717
to 1290 Associates LLC to secure lease payments.
8. $28,503 Letter of Credit issued by Chase Manhattan Bank to Nineteen New York
Properties Limited Partnership to secure lease payments.
9. Intercompany indebtedness, in an amount not to exceed $200,000.00, between
the Borrower, as borrower, and Holdings, as lender.
14
ITEM 7.2.5(a) - ONGOING INVESTMENTS
1. Promissory Note for $250,000 dated June 28, 1993 from Xxxx Xxxxxxxxxxx in
favor of Holdings ($121,243 current outstanding principal balance).
2. Promissory Note for $25,000 dated June 28, 1993 from Xxxxx Xxxxxx in favor
of Holdings ($5,000 current outstanding principal balance).
3. Promissory Note for $25,000 dated June 28, 1993 from Xxxx Xxxxxxx in favor
of Holdings ($5,000 current outstanding principal balance).
4. Promissory Note for $25,000 dated June 28, 1993 from Xxxxx Xxxxxxxxx in
favor of Holdings ($5,000 current outstanding principal balance).
5. Promissory Note for $25,000 dated June 28, 1997 from Xxxxx XxXxxxx in favor
of Holdings ($5,000 current outstanding principal balance).
6. Promissory Note for $75,000 dated April 10, 1995 from Xxxxx Rag in favor of
Holdings ($45,000 current outstanding principal balance).
7. $10,000 advance to Xxxxxx Xxxxxx.
8. $10,000 advance to Xxxxx Xxxxxx.
9. $10,000 advance to Xxxx Xxxxxxx.
10. Intercompany indebtedness, in an amount not to exceed $200,000.00, between
the Borrower, as borrower, and Holdings, as lender.
15
SCHEDULE II to
Credit Agreement
PERCENTAGES
-----------
REVOLVING Term
LOAN COMMITMENT Loan Commitment
--------------- ---------------
DLJ Capital Funding, Inc. 33.3333333333% 100%
Fleet National Bank 33.3333333333%
Credit Lyonnais New York Branch 33.3333333333%
ADMINISTRATIVE INFORMATION
Notice Information
BORROWER:
Xxxxx Xxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: 000-000-0000
Attention: Xxxx Xxxxxxx
PARENT GUARANTORS:
Xxxxx Xxxxx Holdings Corp.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: 000-000-0000
Attention: Xxxx Xxxxxxx
Daboco Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: 000-000-0000
Attention: Xxxx Xxxxxxx
Xxxxx Xxxxx Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: 000-000-0000
Attention: Xxxx Xxxxxxx
-2-
AGENTS:
DLJ Capital Funding, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: 000-000-0000
Attention: Xxxxx Xxxxxx
Fleet National Bank
0 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopier: 000-000-0000
Attention: Xxxx Xxxxxx Xxx
Credit Lyonnais New York Branch
1301 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: 000-000-0000
Attention: Xxxx X. X'Xxxxxx
-3-
LENDERS:
Name of Lender Domestic Office LIBOR Office
-------------- --------------- ------------
DLJ Capital Funding, Inc. 000 Xxxxxxxxxx Xxxx. 000 Xxxxxxxxxx Xxxx.
Xxxxxx Xxxx, XX 00000 Xxxxxx Xxxx, XX 00000
Telecopier: 000-000-0000 Telecopier: 000-000-0000
Attention: Xx Xxxxxxxx Attention: Xx Xxxxxxxx
Fleet National Bank 0 Xxxxxxx Xxxxxx 0 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Telecopier: 000-000-0000 Telecopier: 000-000-0000
Attention: Xxxx Xxxxxx Xxx Attention: Xxxx Xxxxxx Xxx
Credit Lyonnais New York 1301 Avenue of the Americas 0000 Xxxxxx xx xxx Xxxxxxxx
Xxxxxx Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Telecopier: 000-000-0000 Telecopier: 000-000-0000
Attention: Xxxxxxx X. Xxxxx Attention: Xxxxxxx X. Xxxxx
-4-
